Recent developments in national antitrust practice and case law: January 2012 – May 2013

Abstract

In the period under review, the Italian Competition Authority and administrative courts analyzed many important cases in different economic sectors. Some of the these cases raised extremely complex legal and economic issues. The analysis of decision practice and case law highlights some critical aspects of recent antitrust enforcement, namely: (i) the need to strengthen the fight against cartels; (ii) the need to refine the tools used in merger analysis, also through the use of modern econometric methods; (iii) the need to enhance the role of economic analysis in the assessment of unilateral exclusionary conduct, in line with the Commission’s Guidance on Article 102 TFEU; and (iv) the need to find a better balance between competition rules and sector-specific regulation, so as to avoid overlapping and inconsistencies. A further critical issue is the need to reinforce the protection of the rights of defense. In order to improve the current administrative enforcement system, it is necessary to enhance the procedural guarantees and to remove the limits on judicial review of antitrust decisions, thus enabling administrative courts to review fully, in fact and in law, any aspect of the ICA’s finding of infringement, and to pronounce also on the merits of the case.