L' autorità garante della concorrenza e del mercato nel giudizio di Costituzionalità

Abstract

The judgment no. 13 of 2019, by which the Constitutional Court ruled on the legitimacy of the Antitrust Authority to raise issues of constitutionality, turned the attention of the doctrine on the issue of the nature of the functions exercised by the Independent Administrative Authorities. The issue takes a particular interest, as it reveals the image that the Guarantor has of himself, as opposed to the Constitutional Judge. In the opinion of the Constitutional Court, the Italian Competition Authority, like all the administrations, is the bearer of a specific public interest, consisting in the defense of the competition and the market and, therefore, it is not in a position of indifference and neutrality with respect to the interests and to the subjective positions that are found in the execution of its institutional activity. With the consequence that it is not entitled to raise questions of constitutionality. The Italian Competition Authority, for its part, qualifies itself as a judge, even if «for the limited purposes» of the question of constitutionality, which performs functions similar to those of jurisdiction, consisting in pointing back of acts and facts to the abstract cases provided for by the antitrust law, with the exclusion of any appreciation that is not of a purely legal nature. So it would be entitled to raise questions of constitutionality. On closer inspection, behind the raised question of constitutionality, hides the will of the Italian Competition Authority to accredit itself to the Constitutional Court as a third and impartial authority and, at the same time, to undertake with it a “virtuous” dialogue on competition issues. The Court's solution if, on one side, precludes this possibility, on the other one it kees open to the Italian Competition Authority other hypotheses to contribute to the legal evolution on competition issues. In particular, the hypothesis that the Guarantor may try, in the future, to “accredit itself” as a judicial authority to the Court of Justice does not seem to be excluded. Furthermore, as a part of the process, the Italian Competition Authority will be able to offer its own valuable argumentative contribution, making itself the bearer not of a personal and concrete interest, as generally happens for private parties, but of a general interest in the constitutional legitimacy of the legislation. This interest - of a publicistic nature - can be asserted both in the course of the main proceedings, in the form of the objection of constitutionality addressed to the judicial authority, and in the course of the constitutional legitimacy process, through the incorporation in judgment and/or the intervention of a third such as amicus curiae. In particular, this figure, recently introduced in the Supplementary Rules for judgments before the Constitutional Court, seems to be suitable for an institutional subject, such as the Italian Competition Authority, bearer of a super individual interest of a publicistic nature, such as the protection of the competition and the market. In this role, the Guarantor will be able to send his authoritative contribution to the Judge of the Laws in the form of synthetic writings, suitable for widening the knowledge of the Judging Panel. This is a particularly desirable hypothesis, since, in this way, the Court could avail itself of a highly qualified opinion, since it comes from a body which is specialized in the protection of the principle of competition, with all that could ensue in the interest in the evolution of the law.