Sviluppo infrastrutturale e potestà espropriative nel settore delle comunicazioni elettroniche

The development of electronic communications systems, and especially of their network, is crucial to pursue the modernization of the digital infrastructure. Such infrastructural development is complex and uneven in Italy, with some geographical areas still experiencing market failure. Since the sector in question has long been based on facility-based competition, the challenge concerns mainly – but not only – private actors. In this perspective, the widespread development of the necessary infrastructure can benefit not only from the simplification of authorization procedures, but also from the use of expropriation powers, which, under the Electronic Communications Code, can in fact be exercised also by private entities. Offering a significant example of private exercise of public functions, the Code has nevertheless been recently repeatedly amended, delineating a peculiar expropriation procedure. However, the set of tools that the legal system provides to private operators is much more nuanced and articulated than the mere use of straightforward expropriation, with the consequence that the latter, according to the view proposed in this article, should represent a last resort, rather than an ordinary instrument. This is particularly due to the risk of self-interested behaviours on part of the private actors, possibly leading to conflicts of interest and to disregarding – or unreasonably damaging – relevant public and private interests.