Alcune considerazioni sugli interventi in materia di intese e di abuso nell'esperienza comunitaria e italiana

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Our paper analyzes several issues in antitrust enforcement against cartel, with reference to the European Commission approach and to the Italian Authority's decennial experience. In the first part we consider the evolution in the European enforcement, starting from Regulation 17/62, characterized by a strong centralization in the intervention and a substantial judicial formalism. The problems of inefficiency and overloading raised by this approach are discussed in length. Then we analyze the use of fines in the Commission's policy, from their strong increase in the mid Eighties to the use of more sophisticated mechanism that induce cooperation of the firms. Finally, we discuss the process of modernization proposed by the Commission and the likely improvements we expect. In the second part of the paper the increasing role of economic analysis in the European antitrust enforcement is discussed. Then we propose a sequential approach to the investigation that can make use of the indications of the economic analysis taking into account the different informational requirements of the variables and indicators suggested. In the general monitoring phase the authority can monitor the structural factors that enhance collusion; in a later stage behavioral factors as facilitating practices must be considered. Finally we discuss the standards of proof that the authority has to satisfy in the final decision. The third part of the paper reviews the recent Italian experience in antitrust. We claim that the Authority has often used its intervention to promote competition, more than to defend it, in industries which are opening to liberalization in these years. Some open issues regarding the design of fines are further discussed. We conclude with some suggestions of further changes in the enforcement policy.