Legittimità “comunitaria" e costituzionale del nuovo IMAIE: può sussistere un interesse pubblico a tutela del monopolio?

The law no. 100/2010 which establishes the “new IMAIE” does not resolve the problems of constitutional legitimacy which had been already formulated in relation to the pre-existing “IMAIE”. Indeed, the new law introduces an element that confirms the legal nature of the monopolistic position enjoyed by the “new IMAIE”. The legitimacy of law no. 100/2010 has to be assessed not only with respect to national constitutional law but also to EU law provisions concerning the freedom of establishment and to provide services, as well as to EU competition law. The conclusion is that the legal attribution of such a monopoly can be justified as far as it is necessary for the achievement of a public interest. Is this the case for the “new IMAIE”? Although the role of collecting societies in EU future is nothing but clear, after a brief analysis of the current legal changes in the relevant field the Authors give a negative answer. This is so also because the “Services Directive” seems to put a significant restriction on the notion of “public interest”.