Il Riparto di Competenze tra Autorità Indipendenti nella Repressione delle Pratiche Commerciali Scorrette

Abstract

Since the adoption of the European directive on unfair commercial practices, its provisions started to apply alongside the existing sector-specific European legislation on consumer protection. With the aim of ensuring a coherent system of European consumer law, the directive stated that, in the case of conflict between its rules and other Community law regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those aspects. The directive, however, did not mandate any enforcement mechanism at the national level. The Italian legislation which implemented the European directive conferred a general enforcement power on unfair commercial practices to the national antitrust authority. Italian law was not, however, very clear regarding the competence of the agency in markets subject to the oversight of a different sector-specific authority. This issue was raised before the Italian administrative law Court which, at first, seemed to limit the general competence of the antitrust authority in fields where the contested practices were also considered by sector-specific regulation. For this reason, the European Commission started an infringement proceeding against Italy for not having correctly implemented the directive on unfair commercial practices. As a consequence, a recent reform in Italian law conferred the antitrust authority an exclusive competence to combat unfair commercial practices also in regulated sectors, after having consulted the sector-specific regulator, apart when the breach of sector-specific regulation does not result in an unfair commercial practice. After the adoption of this provision, the Italian administrative judge finally interpreted the law on unfair commercial practice consistently with the European directive. The Court denied that the adoption of secondary legislation by a national sector-specific regulators can exclude the application of the general provisions on unfair commercial practices and affirmed the relevant enforcement competence of the antitrust authority also in regulated sectors. In the light of these different approaches, this paper will attempt to examine the benefits and the drawbacks of the enforcement mechanisms endorsed by the Italian Courts and legislator. The aim of the work is to assess, from a legal perspective, which role should the general antitrust authority play in the enforcement of unfair commercial practices in markets subject to sector-specific regulation.