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As previously stated, that within a social-economic context marked by complexity, research must be oriented towards the identification of the factors that allow the starting of a process that leads to an innovative redefinition of the organizational models of reference In the financial sphere, because of the "fail- ures" caused by the above-mentioned crisis of and following years, the pur- sue of this objective has been hard so far; these failures caused a EU's reaction, that reflected first in the policy of austerity adopted and, subsequently, in the in- troduction of stringent regulation which challenges the Member States' ability to maintain the balance they have been aiming for Indeed, in the immediate aftermath of the creation of the European Bank- ing Union - which with the SSM has redefined the supervisory model and with the SRM has redesigned the management methods of banks in crisis - the difficulties for an adequate coordination of prudential policies referred to the competent au- thorities of the sector with the stability of the system were already perceived.

The numerous attempts made by top management of the Italian credit system to 23 See Non luoghi. La difficile conquista di una dimensione europea, cit. The members of the sector are in fact forced to face in- creasing problems as they are burdened by large amounts of NPLs and UTPs, as well as to change their traditional business, as the previous forms of operation based essentially on credit intermediation have ceased to exist and, with them, the possibility of profitable results.

Regarding the particular situation in Italy, the serious recession that afflict- ed the country has caused delays in the return to normality of the economic sys- tem; therefore, unemployment, poverty and a general sense of indignation on the part of civil society were produced, often overflowing into striking forms of pro- test during some bank failures Hence the climate of uncertainty that character- ises the credit system that reflected in critical assessments of the top-level author- ities themselves, whose action sometimes seems unconvincing, especially follow- ing the transfer of supervisory powers to the ECB.

It is true that a sort of decision-making disquiet that prevents the prompt taking of measures, the timely adoption of which could avoid degenerative processes in situations of incipient pathology, does not escape careful observation. If we consider carefully, especially with reference to the way in which some banking crises have been managed, we have the sensation of proceeding with a «navigation on sight»! Its reasons are not very intelligible; therefore, it is due - perhaps erroneously - to the absence of a complete 'strategic' orientation or, worse, to the existence of insane forms of closeness with the members of the sec- tor This, obvious- ly, affects the charisma which, usually, has accompanied the performance of the vigilance function, determining a climate of growing uncertainty in which the dis- continuity of an agent who, in the past, has been able to assure adequate levels of security to the credit sector.

With this in mind, I believe that research should be aimed, first and fore- most, at investigating the reasons that are an obstacle to a rapid end to banking crises, allowing for an easy change in the forms of economic imbalance in the bal- ance sheet, that are sometimes present in credit institutions, in disruptions that are likely to involve large sections of civil society. In other words, the authority feels the weight of decisions which - as can be seen from the bank bailouts of recent years - seem destined to cause considerable disruption and upheaval to the economy, causing the produc- tivity of entire industrial districts to collapse or even undermining the develop- ment of large areas of the country.

In this context, credit super- vision - assessed because of strict formal criteria - may appear to be lacking in terms of efficiency and the pursuit of the objectives related to this institutional function. From this point of view, there is a sharp contrast between the results of the action carried out and the commitment of the structures, which certainly fol- lowing a centuries-old tradition do not spare themselves in their work, trying to propose an activity of optimal technical standard.

Moreover, in an evaluation referring to the factual data of concrete reality, limits are identified in the control activity, which sometimes contribute to aggra- vate the discomfort of the system. Examples of this kind can be found in cases where, in the presence of serious company pathologies, the authority suggests - and allows - banks, critically assessed during the inspection, to proceed with mer- ger operations with others previously judged to be of dubious stability.

In other words, the rescue of an au- thorised person ends up by initiating a process that will turn out to be destructive after some time for the bank asked to help them. In Italy, especially in the last decade, the authorities have implemented numerous interventions in support of the financial system in crisis, calibrated on the interventionist model outlined above.

The need to overcome the rigidity of European regulation has sometimes made the search for innovative ways of solv- ing "failures" caused by the bad management of unscrupulous operators more complex. Consequently, the emergence of a substantial inadequacy of the forms of 'control' has been produced, due to the causes specified above, which are the object of criticism formulated in different places The support given to the legislative reform of the sector, which ended with the creation of the cooperative banking group, governed by Law No.

It is well known, in fact, that 30 See also the different solutions with which substantially similar cases are dealt with. In this context, is significative the well-known case of the four Italian banks that have been treated unevenly if compared to similar situations in the past.

On reflection, however, the supervisory body's action may be hindered by causes not attributable to it. The circumstance of having to face some unscrupu- lous operators who, at times, also carry out criminal acts identifies an exemption for the authority which cannot be considered responsible in any way if, despite its commitment, fails to prevent or eliminate the negative effects of some unfair conduct which, not infrequently, characterize the exercise of banking activity. On the contrary, I do not believe that the presence of limits in the supervision is ex- cluded by the narrative, ostentatious by the authority, concerning the observance, in certain cases, of an appropriate operative line; a behavioural modality to be considered innate to the essence of the institutional function performed.

There- fore, any justifications that refer to the correctness of the activity carried out ap- pear dystonic and without reason The disciplinary construction provided for this purpose by the EU lawmaker, as will be pointed out below, reinforces this conviction, focusing on a scenario in which an appropriate redefinition of the relations between the centre and periphery of the European financial system appears indispensable, aimed at considering the different needs of complexity.

It is understood, therefore, that the difficult way of clarifying and simplify- ing the evaluation processes that are necessary to ascertain possible banking cri- ses must be subordinate to a preventive action of the policy. In this regard, the considerations formulated by the doctrine on the issue on the structural lack of democratic legitimacy typical of independent administrative au- 32 See ex multis DE CARO, Integrazione europea e diritto costituzionale, in AA.

Profili costituzionali, Rome, Indeed, the management of banking crises, as current- ly regulated and administered at European and national level, seems to be a clear expression of that long-standing problem. Only by restoring a coherent link between politics and technology will it be possible to achieve adequate levels of institutional balance so as to avoid the in my opinion justified reactions of the former, which - in the case of Italy - could be oriented towards the adoption of measures aimed at recovering a priority position in the subiecta materia, as in the past recognised by the national legislator.

In the absence of general criticism of the actions of this authority, it is necessary to dwell on the events in question, in order to assess the interpreta- tion of the same by the Bank of Italy and to try to identify the necessary innova- tions to be introduced in the exercise of supervision. Bilancio e prospettive di un modello, Bologna, , p. This situation has, in fact, led to an insane convergence between different interests, the mixing of which, in my opinion, has given content to an action that identifies the primary cause of today's events.

And indeed, on the one hand, there is the interest of politics to overcome the criticality of its inertia by resorting to the intervention of the banking sector, which is called upon to carry out an action of support for the economic system, to be implemented also by resorting to improp- er methods of the credit agere. Hence, solicitations and conditioning of various kinds to the financial management, which in turn intends to perpetuate its power and increase its size, pursuing a delusional dream of omnipotence.

The meeting of these interests becomes a prerequisite for a series of activities which, on the one hand, succeed in carrying out the planned purpose of support and, on the other hand, deceive large sections of civil society and destroy wealth.

In such a scenario, the analysis of the measures adopted by the Superviso- ry Body must be considered central to the investigation, which - although compli- ant with the regulations in force - raise some doubts regarding both their lack of consistency with the respect of prudential criteria and the timing that character- ized the opening of the procedure in question.

More specifically, certain aspects need to be pointed out regarding the in- corporation of Tercas Banca on the occasion of which the adoption by the Bank of Italy of a behavioural line in accordance with the intervention logic mentioned above interacted on the coherence of the operation. Consequently, on the basis of the ordinary prudential criteria linked by the special legislation to sound and prudent management, the authority should have refused to grant the acquisition authorisation, which took place instead in It is clear that the intention of the Bank of Italy to 'close' the Tercas Banca affair has been a good idea to adopt a careful cautious approach, making it possible to dis- regard routes that are likely to be less risky!

Certain unforeseeable events i. In this regard, it should be noted immediately that the overall content of the arguments set out in that forum is aimed at highlighting the difficulties of the interventionist action carried out by the Supervisory Body, which to this end re- ferred to the existence of a «regulatory framework In fact, the reasons given by the Bank of Italy's representative for justifying the Bank's line of action appear to be uncon- vincing. On second thought, this reconstructive hypothesis of the banking discipline complex does not fully assess the extent of the change in recent years required by EU legislation.

Contrary to what was provided for in the previous regulation, the extraordinary administration of banks, referred to in Article 70 of the Consolidated Banking Act, is now part of the early intervention mechanism, i. Therefore, the shared consideration of the Bank of Italy's representative according to which «when an extraordinary administration is activated, it is neces- sary that there are concrete prospects for a solution to the crisis»42, it should have been a prelude to the application of this procedure in the immediate future, i.

Similarly, the reasons given to justify the non-use of the removal power, by the special regulations art. Indeed, the considerations made by the Bank of Italy representative for the adoption of this measure must be considered decisive- ly contradictory. This is because, in view of the shared reference to the necessary existence of «objective evidence, capable of proving that the continued presence in office of the member is detrimental to the sound and prudent management of the bank» It is argued that this «circumstance It does not es- cape the reader, in fact, that the reference to such a business context denotes an intrinsic negativity that should motivate the intervention of the authority, while in the construction of the above-mentioned construction it becomes a prerequisite for a reductive assessment of the causes of inadequacy of the exponents to be removed.

In order to fully assess the limits that have characterised the activity of the supervisory bodies in the face of the growing number of banking crises in re- cent years; also, it is necessary to consider the ECB's behavioural line.

It is hardly necessary to recall, in fact, that following the introduction of the Single Supervisory Mechanism SSM , which assigned specific supervisory tasks to the ECB on the so-called significant banks, credit institutions not falling into this category, while remaining under the supervision of national authorities, have be- come the subject of checks by a special Directorate-General operating within the SSM.

In this way, the European Central Bank can assess the activities carried out by non-significant banks in view of the possibility provided for by art. Therefore, one wonders what the reason is for the ECB to give up the pow- ers granted to it by the European regulator. Probably upstream of such an attitude is the intention to limit its intervention only to cases of "declared instability", which, regarding the People of Bari, the massive intervention of the Italian Gov- ernment has prevented at least formally that could be ascertained.

However, it has to be considered that this orientation is not very consistent with the expansive line of such technical authority which, in recent years, has sig- nificantly consolidated its operational power sphere. In this view, the extension of the ECB's powers has also been explicitly recognised by the European Court, ac- cording to which - as one careful commentator pointed out — «after the adoption of EU Regulation No. Meanwhile, the trend towards further growth in the role of this technical authority is confirmed by its indications in an opinion on «a proposal More specifically, in the field of anti-money laundering supervision, while recognising that this is outside the ECB's field of competence, the ECB claims the right to acquire the data concerned «for the pur- pose of carrying out It is clear that the inclusion in the Union's regulatory framework of a specif- ic ECB presence in the fight against money laundering marks an important step towards the centrality of a command that ranges in all directions and which seems destined to encompass all forms of supervision over financial activity.

On the contrary, the critical points of the sys- tem are knots that will not fail to come to the fore! Following the above considerations a series of questions to the scholar arises regarding the validity of the banking sector set by the EU summits after the financial crisis. These activities - without prejudice to the cor- rectness of the intent from which they are based - sometimes appears inefficient because of the weak decision-making process which takes place within its struc- ture.

A reality leads to easy criticisms regarding the timing of the measures adopted. The reflection on the quid agendum back to the identification of the causes which, on the one side, make the current model of supervision inadequate com- pared to that existing in Italy in the period prior to the creation of the EIB , on the other they allow to identify the existence of possible shortcomings in the supervi- sory role of the national authority.

In this context, the controversial discipline of the BRRD and, in particular, the rules on bail-in have seen Italy at the forefront of making radical proposals to revise it It follows that the onerous adherence of European legislation - and, therefore, the relationship of substantial subjection in which the Italian superviso- ry authorities pay towards the ECB and the other institutions of the Union - identi- fies a first field of investigation in which the effects of the internalization of losses must be compared with those of an unconditional public guarantee on bank liabili- ties.

In particular, it was considered contrary to the market the fact that to the holders of subordinated loans and even some groups of minority shareholders were recognized the possibility, in the pres- ence of serious bank failures, of recovering at least in part their property rights.

This conviction did not prevent, however, from recognizing the opportunity to prepare a new regulatory package, in which significant space is given to the revi- sion of the minimum requirement of liabilities subject to devaluation or forced conversion into capital MREL These reflections made at European level do not take into account the fact that the crises of systemically important Italian banks firstly MPS should have been subject to the European interventions, with a mutualisation of rescue costs within the second pillar of the banking union.

It is the nominated criticisms of Italy are therefore sur- prising, given the contradictory attitude of the EU, which first refrains from provid- ing adequate aid, then negatively assesses the bailouts carried out independently due to their cost. The above topics - although take into account the criticisms are focused on the regulatory aspect of the bail-in - are aimed at safeguarding the ordering crite- rion, based on the BRRD, concerning the preservation of business continuity and, therefore, to preserve value.

Hence the prospect of rules which, on a substantial level, leave the system established in the BRRD al- most unchanged: they appear to be limited to declining a principle of proportion- ality in its application, to mitigate their rigor in certain cases. We therefore understand the reason why the reorganization measures of credit institutions limited to certain «amendments to implement the Total Loss Absorp- tion Requirement TLAC In my view, the view expressed in the abovementioned reforms does not allow to solve the problem that the European regulation still raises in countries like Italy.

Therefore, the authorities were able to cope without excessive trau- ma the rescue of the banks in crisis and the savers, involved in situations of bank- ing pathology, to overcome their harshness without negative consequences. Hence the affirmation of a financial «culture», contrary to that which char- acterizes some EU countries, advocating the new European regulation.

On closer consideration, the latter has not evolved in the sense of accepting mechanisms that upset the foundations of the previous discipline. This results in the substan- tial, generalized refusal of the resolution of the banks mentioned above and, therefore, of the application of the remedies that strongly affect the overall reality of the same, affecting not only the shareholders but also the subjects who have in any case-maintained relations with them.

Moreover, the same legislator intended to recognize peculiar specificities to such participatory interventions, to differentiate them with respect to those of or- dinary institutional investors; in this sense it guides the particular quantitative lim- itation of shares of popular banks held by investors It is evident that - as has been argued by a large part of the doctrine - the presence in the capital of these banks of entities that pursue exclusively investment purposes aims «to reconcile the needs of capitalization with that of cooperative democracy, since these bodies do not create … those same risks of concentration of decision-making power that other legal entities that participate in the capital of popular banks could create» Similarly, it must be considered that some ethically incorrect bank opera- tors engage in behaviour that does not respect the rules of transparency or profit from situations of need of the negotiating counterparty A more in-depth review of the BRRD and, with this, of the other disciplinary measures that, in recent years, have changed the banking crisis management re- gime, on my view, identifies the unavoidable starting point for initiating suitable reforms to make the special legislation in question compatible with the Italian fi- nancial reality.

Naturally any desirable intervention by the European regulator will have to take into account the particular expectation of the small savers who have entrusted their availability to banks which then ran into crisis situations not to go against certain losses. Similarly, customers whose operations have been subject to the purchase of equity securities i.

It is not my responsibility to indicate, here, what and how many changes can be introduced in the European regulatory system; moreover, what seems in- dispensable is the removal of the constraints that today characterize its essence. This is necessary in order to allow national authorities an adequate flexibility aimed at mitigating their rigid profiles and making it possible to search for solu- tions compatible with the level of financial culture of the reference countries.

In the presence of an economic pluralism, such as that based on the Union, the regu- lator must aim at respecting the differences existing between the Member States and, at the same time, take care to avoid inequalities, in line with the well-known maxim in varietate concordia.

In the light of these criteria, a fair balance must be sought between innova- tion based on the market and safeguard of the protections that have characterized some national realities. Turning to the examination of the interventional capacity of the Italian supervisory authority, it should be immediately specified that even in the past there have been situations in which doubts have arisen on the behavioural line of the Bank of Italy during events that determined even then a system crisis.

In the presence of such events, regarding the top management of the su- pervisory authority I affirmed that the «power In this view, the doubt of the lack of a necessary inde- pendence of the central bank from the interests in the field is understandable. In the current historical moment, the systemic crisis - to which I referred in the previous pages - is attributable to causes quite different from those which at the time induced me, with deep regret, to express a critical judgment towards the institution in which I have worked for about thirty years and to which I am deeply devoted, owing to it my cultural and professional training.

What characterizes the present situation, to consider carefully, is an oppo- site reality, that is in many ways different from the reality found at the beginning of the millennium. Currently, there is a sort of immobility easily exchanged for in- efficiency and, consequently, a substantially resigned line of the sector authority, to which I have referred several times in this paper. As you know, this event was followed by a downsizing of the powers of the national supervisory authority, which was accompanied - perhaps unconsciously for an excessively reductive in- terpretation of its role - a sort of discouragement from the authority; hence the abandonment of an interventionist activism that, in the current situation, could have led to positive results, however not separated from an increase in responsi- bility.

In this context, the silent attitude, that sometimes appeared excessively cautious and even late held by the authority in question — to which I have re- peatedly referred to in the investigation — is explained. Accordingly, some observers believe that because of the identity crisis, as- cribed to the Bank of Italy by many, it was a weakening of its action, with obvious negative implications on its ability to influence. This did not mean, however, abandoning the method of rigor and operational correctness traditionally followed by the institution; so that the words of the Governor Visco must be considered justified, who - faced with some media attacks - wanted to express the senses of his disappointment by specifying, that «the supervisory action However, there is a complex situation that needs to be clarified.

Indeed, the fact that the deplorable conduct of some of bankers is, at present, subject to eval- uation by the judicial authorities does not seem to be decisive for the mala gestio of these. At present, the super- vision has lost the previous direct connection to the inputs of the national policy; except for the fulfilment of an obligation to report to the representative bodies of the top management of the banking system, which are so implicitly subject to con- trol.

Therefore, the need to find an organizational formula that redefine the terms of social control and the rate of democracy in the choices of the technical authori- ty. It is necessary to assume a regulatory construction within which no space is given to the possibility of delays and omissions, which in recent times have been found in public intervention in the banking and financial sector, replacing them with timeliness of the action and its responsiveness to the standards for a trans- parent link with the policy indications.

However, such statements do not intend to neglect the need to conform the contents of the supervision to the indications formulated in the EU. In this context, a re-evaluation of the role of the ICRC, abandoned in the 64 See on this point my work Intervento pubblico e ordinamento del credito, Milan, , passim, but in particular chapter II. This is a significant commitment that politics could, however, face in order to acti- vate a dialectical process with technics and thus confer continuity and adequate levels to interaction with the latter.

On this view, having recourse to a re- evaluation of the role of the ICRC, to the present abandoned in the «port of the mists», means rethinking its objectives and functional modalities. In this way, dan- gerous reactive forms of the public authorities could be avoided in the face of the persisting banking crises, avoiding that easy ideas are taken from these for the adoption of reforms of the regulatory model of the Bank of Italy; reforms that are likely to compress if not even frustrate their autonomy.

Indeed, a correct interpretation of the ways in which change cannot be separated precisely from the conservation of the autonomy of the Bank of Italy. This institutional prerogative - currently strengthened by the technical function assigned to it by the Union - feeds on the high qualification that characterizes the action of this body, to which great authority is recognized by reason of an irre- proachable line of conduct; all elements that have allowed it to be framed in an area characterized by the generalized trust of civil society.

Consequently, in order to maintain its prerogatives, the authority must conform its activity to criteria that exclude any criticism or charge against it. The latter could result from the delayed adoption of an extraordinary administration measure, despite the existence of previous assessments which show that, in times significantly prior to the commissioner, the supervisory authority was aware of numerous elements i.

Naturally the search for adequate reforming lines of the Italian banking sys- tem should take place after agreements with the European authorities and, if nec- essary, together with the strengthening of the link between the Italian public in- tervention mechanisms and the European ones.

Perhaps, useful indications in this regard could come from an adequate reform of the ESM, which is at the centre of the political debate aimed to shed light of the direction and scope of the related interventions. I refer to a possible, rational use of its financial resources for the di- rect recapitalization of banks, thus rejecting projects that intend to redefine its functions having regard to a hypothetical tightening of its intervention powers It is clear that any reform project must fit into a more general plan - which seems to have been initiated by the new European Commission - of economic governance; a design that finally faces and overcomes the «limp» between the government of monetary policy and that of economic policy, recomposing their unity of direction.

The above considerations show an Italian scenario within which the 66 See supra note no. The first acts as a catalyst for the emergence of the difficulties in which the banking sector is debated. The banks are between the need to conform with the regulatory framework imposed by the EU and the growing tendency to disregard its principles in various ways.

In particular, it is generally considered that if a return tout court to generalized mechanisms of bailouts is no longer possible, however it is necessary that the European tools must be partly changed. Few uncertainties and contradictions reflect in the action of the national supervisory authorities, which in some cases is inconsistent with the needs of a sector that still experiences the negative effects of the financial crisis.

A mala gestio of banks is evident that even if, on one hand encourages the economic crime, on the other hand supports failing firms, which are likely to default, through uncontrolled faulty ratings. In this context, the confidence of civil society towards the top management of the domestic financial institutions also risks being compromised. As discussed, it is subject to a media campaign which certainly does not affect its ethical and professional integrity, but nevertheless highlights certain disconnected decisions and delays which represent an evident sign of inefficiency.

Perhaps this is the correct methodological approach that can help Italy get out of the difficulties with which, unfortunately, it is cur- rently struggling! After having clarified the crucial role that big data are called to play within the digital economy, the paper focus on the concept of big data. In this respect, it is pointed out as, on one hand, big data are able to generate added value in a variety of ways, with numerous positive examples, entailing significant opportunities for citizens.

On the other hand, the advantages offered by big data come with many challenges, including the ownership misuse, and they entail significant risks, especially with regard to the protection of fundamental rights. In its main part, the paper analyses the legal nature of big data, as well as the data mobility regimes, before specifically analysing whether — and to what extent — competition law-related matters may affect big data for instance, whether big data can be seen as an essential facility.

Given the public relevance of big data, as widely pointed out in the study, some specific cases in which State aid issues may arise are identified. The complexity of the research lies on the fact that currently a clear legal framework within which big data are regulated does not exist, either at the EU level or at domestic levels.

Paragraphs 1. The lack of a specific regulation is improperly covered by different administrative actors within initiatives especially at domestic level, for instance, independent administrative authorities, administrative agencies with different degrees of competences in the field of big data. The paper concludes putting forward some regulatory solutions within the EU legal system. Origins and definition of big data. The legal nature of big data. Data mobility regimes. Competition law and big data.

State aid and big data. A possible regulatory solution: big data as a universal service. Strengthening regulation of data EU legal system. Offered as a new civilizing stage coined in the struggle against monarchical absolutism, the Rule of Law has relied on important institutes of this new time, such as the political representation, the mechanisms for controlling legislative production, the political parties and the liberalism as the ideology of the market, proposing the breaking of arbitrariness and the promotion of equality — even if initially only formal — and freedom — above all individuals.

Alongside these promises was the rise of capitalism with the absurd concentration of wealth of the few, with the deepening of social inequality reaching many at a diametrically opposite pace between one social extreme and another, realizing that freedom and equality were shown to be only formal principles. According to such author, the great achievement of modernity lies in the factual limitation of material inequality and in the protection of freedom, locating human rights as an ethical reference of a democratic society, committed to the values of the individual, its autonomy and dignity.

However, he acknowledges that globalization, the increasing complexity of social and political processes associated with scientific advances, the cyber revolution and the very inadequacy of the State structure in view of the irreversible integration that announced itself in Europe , contributed to the crisis environment around the modernity project and its legal system2. The author further notes that the crisis is favored by the emergence of new technologies, which eventually revealed other sources of legal production with the multiplication of actors in the above and infra-mentioned scenario, the decision- making polycentrism, the tendency of deregulation, the delegation, in short, a new structure of legal normativity in a network, with the regression of the principles of unity, rationality and statehood3.

As noted, it is the advent of postmodern law characterized by the decline of practical reason as an element of human 1 A. One of the causes of this transformation is the growing level of insecurity that affects the development of scientific knowledge, causing the growing sense of risk in the management of the technical means that scientific advances provide — generating the impression of unprotection in the face of possible technological disasters.

Another cause is the explosion of ignorance as the horizons of knowledge widening, because there is a feeling that the more one knows the more one becomes aware that much remains to be known. In this wake comes the other cause, the resizing of the traditional knowledge-power relationship, throwing the legal categories of modernity into obsolescence. The protection of human rights in this risky society, of course, is going through a particularly critical period in the redefinition of the social sciences, with the intensification of economic change through new technologies, the frantic expansion of capitalism and the creation of inaccessible transnational macro economic powers, inaccessible to the democratic control by citizens.

We speak about another phase in the development of capitalism. As has been pointed out, it is the age of digital industries, technoliberalism, that reveals purely the commodification of life, with sensors placed across the surface of existence to monetize behavioral knowledge and make it profitable. The functionality of this technological environment is the algorithmic or automated organization of increasingly large sectors of society, denying its spontaneity, creativity and self-determination capacity4.

As he notes, the digital revolution leads to the dystopian risks associated with the technocratic elite that dominates it and has a vision of reformulation of the idea of man by transhumanism7. It is a technical vision stripped of any kind of reflection or humanistic content, focused on pushing boundaries, breaking the foundations of civilization. The problem identified by some scholars is the evolution to the cognitive model based on the depletion of political power, the neutralization of democracy, and an unprecedented process of concentration of wealth and monopolistic power, widening inequality.

It is a political revolution that crushes the idea of citizenship by adulthood, proposing an assisted freedom that replaces the law with algorithms8. Paris, , p. Transhumanism — term coined by the British biologist and writer Julian HUXLEY in in the book Religion without Revelation, London , is a cultural movement supporting the use of new scientific findings and emerging technologies to enhance physical and cognitive skills and, thereby, to improve those aspects of human condition deemed as undesirable, e.

Another scholar demonstrates the new colonization of the psyche by the intelligent power of algorithms. He is friendly, does not act directly against the will of the subject submitted to him. Another scholar13 exemplifies with the goldfish metaphor, which only has attention span for eight seconds, after which its mental universe resets itself.

This species was supposed to live in shoals, last between twenty and thirty years, and grow to the size of eight inches, but the aquarium atrophied it. According to this author, Google has estimated that the capacity to concentrate of humans, in millennial generation, outnumbers the goldfish in just one second.

Over the lapse of nine seconds the human brain needs a new stimulus. This is how humans become the goldfish subject to the carousel of addictive alerts and instant messages. This attention economy destroys relations with the public space, knowledge, truth, information, and democracy With such techniques, the sociability of the subjects is completely altered. What can be understood in this state of the art is that the organization of society provided by the 18th Century Liberal Rule of Law, which surpassed the twentieth-century totalitarian movements and reinvented itself as a post-war Democratic Rule of Law, is completely impacted by the dizzying technological revolution that calls for institutions compatible with the present.

It is the civilizing crossroads that challenges the legitimacy of the liberal model institutions, giving way to a neo authoritarianism, losing the democratic sense. Along with this comes a strong ethical crisis, with the appropriation of public goods by large business groups, in exacerbated radicalization of predatory individualism. This is the background of this paper, taking as a reference the emergence of risks peculiar to the dystopian possibilities of big data and the circumstances for the establishment of regulatory mechanisms.

Specifically, the research aims at investigating if, how and to what extent the EU competition legal system especially State aid affects big data The complexity of the research lies on the fact that currently a clear legal framework within which big data are regulated does not exist. This lack of regulation at the EU level and at domestic levels makes the objective of the full implementation of the EU digital single market a priority.

Soon every single aspect of our day to day life will be connected and everything will be smart, not only phones, but also vehicles, houses, cities, financial technology or FinTech 20, as well as insurance technology InsurTech The Internet of Things IoT , the Internet of Beings IoB and the analysis of big data will align with artificial intelligence and biometric systems: we will live in a smart planet This is likely to increase the quality of life and life expectancy Sivinski, A.

Okuliar, L. Kjolbye, Is big data a big deal? A competition law approach to big data, in European Competition Journal, Vol. Engst, V. Within the digital economy, big data are called to play a crucial role. As has been recently pointed out, big data analytics generates added value in a variety of ways, with numerous positive examples, entailing significant opportunities for citizens, e.

However, the advantages offered by big data come with many challenges, including the ownership misuse29, and they entail significant risks, especially with regard to the protection of fundamental rights, such as, inter alia, the right to privacy, data protection and data security, freedom of expression and non- discrimination See also G.

The lack of a specific regulation is improperly covered by different administrative actors within initiatives especially at domestic level, for instance, independent administrative authorities, administrative agencies, etc. Specific initiatives have been undertaken at the EU level, like, inter alia, in the transport32, the smart city33, the healthcare34 and the energy35 sectors just to mention a few , in which it is clear that technology and digitalization may have an extraordinary impact on people life and activity.

Moreover, the Commission is exploring separately the issues of accessibility and re-use of public and publicly funded data and privately held data which are of public interest and liability in cases of damage caused by data-intensive products Thanks to the internet the amount of data that we create is growing at an unprecedented rate. In the past, data were primarily created by the corporate and public sector, held privately and used internally. See also European Commission, Proposal for a directive of the European Parliament and of the Council on the re-use of public sector information recast , COM final, 25 April And most of this is created by individuals on platforms such as Facebook, You Tube and Twitter Such data refer to increasingly large data sets that companies collect from activity on the web, including on social networking sites and connected devices.

Companies that collect many data are able to achieve a better understanding of the real world that gives them a competitive advantage over rivals that do not have access to the same big data However, big data are not simply about the scale of the data but the scale of the inter-connectedness, the relationships that exist between large and sometimes disparate data sets.

Big data do not consist of a huge amount of the same product because, with the exception of duplicates, digital data are different from each other This means that big data of one company do not coincide with big data of another company Data can either be created by people or generated by machines, such as sensors gathering climate information, satellite imagery, digital pictures and videos, purchase transaction records, GPS signals, etc. See also D. Rubinfeld, M. Gal, Access Barrier to Big Data, cit.

Delmastro, A. Nicita, Big data. Come stanno cambiando il nostro mondo, Bologna, , pp. Big data for growth and well-being, 6 October Other scholars50 point out that the concept of big data is as popular as its meaning is nebulous. Firstly, data can be volunteered or surrendered by individuals. These data are shared intentionally by users According to the joint report, this typically occurs when an online shop asks the consumer to give his address, payment details and e-mail-contact in order to process the purchase and the consumer will provide these data by entering them into some type of form.

Social networks as well as social communication services rely on their users inputting all kinds of mostly personal data. This may include personal information such as name, address, educational background as well as personal messages, photos, videos, comments on recent news, shopping preferences etc. General or specialized search engines rely on their users entering search terms and thereby revealing information about their interests For instance, internet browsing preferences, location data when using cellular mobile phones or telephone usage behaviour Moreover, data can be generated by inferring new information using already existing data.

Inferred are data about individuals based on analysis of volunteered or observed information For instance, an online fashion shop could analyze the individual products a visitor has been viewing to infer — albeit with 54 OECD, Exploring the Economics of Personal Data. Other ways through which data are generated can be identified. For instance, data can be generated by public bodies e. Within the EU law, the protection of natural persons in relation to the processing of personal data is a fundamental right Article 8, par.

More in details, Regulation affirms the principle that personal data belong to people who such data refer to Only with a valid consent, data collection, organization, storage, or analysis generally transforms data into something similar to a private good73, relevant also within a competition context See also M.

Nicita, Big data, cit. As for big data, given the complexity of their use, the information provided to data subject shall be based on the principle of transparency of data processing An interesting example involves the use of cookies as a means of collecting information Tracking cookies are technological devices that allow website 75 Article 5, par.

Article 6 of such Regulation lists the other cases in which data processing is deemed as lawful. See H. Ursic, B. Gutwirth et al. Under EU regulations, the user must give permission for the use of cookies in each and every site he enters opt-in mechanism , thereby creating a legal barrier for data collection See also O. Lynskey, Track ing changes: an examination of EU regulation of online behavioural advertising through a data protection lens, in European Law Review, 36 6 , , pp.

Verbraucherzentrale NRW e. Public sector bodies collect, produce, reproduce and disseminate documents to fulfil their public tasks. Many of such data are necessary to States to exercise functions linked to national or public security86 or however activities regarding public functions having sovereign nature e.

These different legal regimes of data have or may have a significant impact on the mobility regime, on one hand, and on the competition system, on 84 See whereas 4. See also whereas 6, 8 and many other provisions therein. The Directive seems to introduce a general obligation on Member States to allow re-use of documents. According to Article 5, par. It presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, such as a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests.

In particular, it should be recalled that, in accordance with Article 4 of the Treaty on European Union TEU , national security is the sole responsibility of each Member State. However, before entering in medias res, we should take stance over some theoretical points concerning the legal nature of big data. An example of big data is data recorders stored in cars.

These data are not related to a specific person They are important for the car producers in the long run to check whether their cars have been developed in an appropriate and especially secure way. But who is the owner of these data? According to this theory, the person who generates the data gets the right to the data See also Commission Staff Working Document on the free flow of data, cit. However, with regards to the access to privately-held non-personal or anonymised data, the EU Commission has pointed out that in-vehicle data — for the specific purpose of opening up the market for after-sales services maintenance and repair 95 — do not have to be provided for free, but is subject to a regulated regime Some scholars97 argue that, legal systems generally differentiate between raw data and databases or processed data.

Raw data refer to basic, unprocessed data, such as internet traffic Generally, raw data, including private data, are not seen as owned by anyone According to this view, there is no market that requires generic big data, as such These authors explain, by making a simile, that big data are like the papers that a lawyer collects after discovery, while information is like the evidence that that lawyer can extract from those papers by analysing them.

Williamson, Big data, cit. The aim of this study is to show that there is a need to more equally distribute the benefits stemming from the digital economy, by attributing a quid also to whom produce data From one side, allowing individuals to sell or license their data means giving a monetary value to fundamental rights. The commodification of personal data is viewed as the commodification of a human being and its identity.

From the other side, the commodification at stake implies that prosumers have gained a significant level of digital literacy, that is not yet the case in the EU, according to recent data published by the European Commission. Digital Inclusion and Skills, p. Other scholars propose another possible solution consisting of creating a new data producer right, with the objective of enhancing the tradability of non- personal or anonymised machine-generated data as an economic good This solution raises a number of questions, starting with the scope of the right.

In this respect, someone believes that such a right could be envisaged as a right in rem, assigning the exclusive right to utilise certain data, including the right to license its usage. As has been properly outlined, such right would not be conceivable with regard to personal data as the protection of the latter is a fundamental right in itself under which natural persons should have control of their own personal data Alternatively, instead of creating the data producer right as a right in rem, it could be conceived of as a set of purely defensive rights Many online sites especially social networks are based on prosumers, given that they gain value as more people join them and interact with each other and create communities, video platforms such as YouTube gain their importance as they encompass an ever-increasing number of communities and video not only funny cats or people, but the platform is valued for starting trends among the youth and new cultural phenomena: see DUNCUM, Youth on YouTube: Prosumers in a peer-to-peer participatory culture, in The International Journal of Arts Education, Vol.

There are sites like Wikipedia that are entirely created by prosumers, who create and edit the content and enrich the website. Others are of the opinion that the answer to the question concerning big data ownership is multi-faceted, and three different perspectives — traditional property, intellectual property, contract — are identified According to this view, these perspectives are not mutually exclusive and can be used in different contexts, according to which situation is considered prevailing.

This conclusion conceives big data as a private matter, to be regulated between parties of a contract. However, other regulatory and interpretative options may be put forward. Di Porto Ed. Big data have social functions, and should be used by governments for public policy purposes , such as, inter alia, prevention of corruption, conflicts of interest, tax fraud and money laundering, and also to promote competition within the social market economy, as well as to identify and monitoring differences in access healthcare and diseases caused also by environmental pollution by geographic area, and — more in general — to increase the well-being of all people Also for commercially-held information, the EU Commission has pointed out as in a number of scenarios, public sector bodies could significantly improve their decision making using such information, notably for reasons of public health policy, spatial and urban planning, natural and technological risk management, managing energy supply grids or protecting the environment Governments can recte: should solicit such data to private firms to carry out their tasks.

See also J. Cavanillas et al Eds. A possible solution to make the release of the required big data possible and lawful would be legislative measures. A similar solution has been adopted in France, where the recent French open data legislation has put in place the possibility for the government to request commercial players to give access to data, they hold for the purpose of establishing public statistics Another possible interpretative option consists of considering non-personal data as something that nonetheless derive, inter alia, from persons or mainly from human activities and therefore are indirectly personal.

This point is treated more extensively infra. See Commission Staff Working Document on the free flow of data, cit. Drexl, Designing competitive markets for industrial data, cit. Also in Germany, with the reform of the German Act against Restraints of Competition, entered into force on 9th June , the German competition law was adapted to the digital era.

It introduces and deals with problems concerning, inter alia, data access and competitive pressure from innovation. Articles 6- 9. In this context, sharing of information on substances should be provided for in order to, inter alia, reduce testing on vertebrate animals whereas 33, 49, 50, The Article 29 Working Party issued guidelines on this specific point and applied a broad definition. It may also include other raw data such as the heartbeat tracked by a wearable device By contrast, data created by the data controller on the basis of data provided by the data subject would fall outside the scope of the right to data portability.

For example, personal data created by a service provider through algorithmic results, or the outcome of an assessment regarding the health of a user or the profile created in the context of risk management and financial regulations e.

This identity does not necessarily concern a specific physical person, but aggregate and anonymised datasets for instance, data concerning a specific urban area with regards to energy consumptions, road traffic, healthcare, etc. Notwithstanding, they derive, inter alia, from persons that, if deemed as a whole, may be identified in the State-community. Within this view, it may be possible to consider big data as a common.

However, its definition varies with the type of resource at hand Like for other new commons, also big data may be seen as a reaction to increasing commodification, privatization, and corporatization, untamed globalization, and unresponsive governments There are many different ways that new commons evolve or come into being.

Some — like big data — evolve from new technologies e. As for big data, they are generated for free mainly by network users, and they are captured by collectors through new technologies Commons-based projects generally have less rigid hierarchical structures than those under more traditional business models. Often—but not always—commons-based projects are designed without a need for financial compensation for contributors.

All the principles or structural attributes governing such a model theory seem to be met with regards to big data: first, the potential goals of peer production are modular; second, the granularity of the modules; and third, the low-cost integration These are the main reasons why, although with a view to carry out a deeper specific study on this point, we believe that big data can be conceptualized as a new digital commons. Within this perspective, at the international level, the OECD is undertaking extensive analysis to assess to what extent enhanced access to data can maximise the social and economic value of data Personal data, non-personal data and public data are subject — as we have seen above — to different legal regimes.

Notwithstanding, the general principle of free mobility of data seems to be full for all the three categories of data. The principle of free movement of personal data is clearly stated in Regulation Article 1, par.

Here the principle is that documents held by the public sector concerning not only the political process but also the legal and administrative process are made available to interested persons. Another important provision of the Directive is that allowing public bodies to make charges for re-use. In this respect, see also European Parliament Resolution of 4 April on the proposal for a directive of the European Parliament and of the Council on the re-use of public sector information recast.

Article 5, par. Editors: R. Sections Table of contents About this book Bibliographic Information. Buying options eBook EUR Learn about institutional subscriptions. Table of contents 6 chapters Search within book Search. Front Matter Pages N1-N Austria R. Wilson Pages Finland R. Liechtenstein R. Norway R. Back Matter Pages Volume 3 covers find any entry rapidly and accurately. The Continental EC lists all companies having entries in Volume 1 area covered by these volumes, the European Community, in alphabetical order irrespective of their main country of represents a rich consumer market of over million people.

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