Success Rates of Competition Advocacy by Italian Competition Authority: Analysis and Perspectives

Abstract

This article contains a comprehensive review of competition advocacy powers and interventions adopted by the Italian Competition Authority over recent years with their relative success rates. Namely, the article first describes the set of traditional advocacy tools available to the Authority in order to fight the public restrictions of competition, and notes that it has been strongly strengthened in recent years as a result of important legislative innovations. Second, it analyses and elaborates on the success rates of advocacy decisions issued over the period 2013-2014. In this analysis, outcomes are considered positive (or partially positive) when the public administrations or legislators, national or local, have decided to comply (fully or partly) with the advice given in the opinions. On the whole, the analysis shows levels and figures of success rates outperforming the negative responses, especially when the Authority intervenes while the decision processes - of administrative or legislative acts - is ongoing, in particular when the Authority is asked for opinions, rather than issuing guidance on its own. A consultative role in competition matters can be clearly drawn for the Authority, which can provide interesting cues for competition advocacy policies in the future. Third, the article pays special attention to the new competences introduced by the legislature in 2011 and 2012, with regard respectively to Article 21-bis of the Law No. 287/90 which assigned to the Authority the power to take legal action against general administrative provisions, regulations or measures of any public administration which unreasonably restrict competition; and to art. 4 of the Decree-Law n. 1/2012 under which the Authority can issue opinions to the Presidency of the Council of Ministers with respect to regional laws that unduly restrict competition, aimed at challenging them before the Constitutional Court. Also in this case, the success rates of the implementation of such articles show results encouraging the Authority to continue its pursuit of this goal.