Daniela Sorvillo, Il principio del “giusto procedimento” nella risoluzione extragiudiziale delle controversie: il caso delle comunicazioni elettroniche


1. Premessa. 

2. Profili d’indagine. 

3. La regolamentazione nazionale.

4. La risoluzione delle controversie innanzi all’Agcom. 

4.1. Principali aspetti procedurali. 

4.2. Dall’obbligatorietà della conciliazione alla tutela cautelare. 

4.3. La risoluzione extragiudiziale delle controversie e il “giusto procedimento” 

5. Conclusioni.


This article aims at taking stock of alternative dispute resolution (ADR) procedures carried out by the Italian regulator for the telecommunication sector. Agcom, in its capacity of independent national regulatory authority (NRA), is entrusted by European and Italian legislative norms to promote free competition and protect consumers’ rights in the electronic communication markets. More specifically, the legislative framework requires NRAs – or other independent bodies – to provide availability of simple and inexpensive dispute resolution procedures. To this aim, Agcom has adopted two Regulations regarding dispute resolution between operators and users, and between operators. In both cases, because the procedure takes place before a specialised unit of Agcom it can been defined as an “alternative” dispute jurisdiction, replacing the powers of a Court. Among legal issues arising from analysis of Agcom’s ADR procedures there is whether and how Agcom ensures the claimant the same guarantees offered by the judge: that is, the principle of a right procedure. To answer this question the author has considered two important assumptions: first, the Italian Constitution does not provide for a tertium genus between administration and jurisdiction; second, Agcom is not a body of the judiciary but is generally included among administrative agencies, however of an independent and selfregulatory character. The analysis stems therefore from these two basic assumptions, and aims at verifying their overall consistency with actual implementation of ADR before Agcom in light of relevant legal principles, namely, the right to due process.