Judicial assessment of anticompetitive behaviour in Italy

The central role of the Italian Competition Authority (AGCM) in the Italian competition law enforcement system, together with the civil law tradition, with no discovery mechanism and with structural difficulties in dealing with complex factual issues, has left a quite marginal role for national courts in adjudicating antitrust cases. Moreover, the attitude of the courts has proved to be unsatisfactory due to the excessive deference given to the AGCM. The decisions of the AGCM are subject merely to limited judicial scrutiny, especially in the field of 'technical discretion'. As this chapter shows, the provisions of the EU Damages Directive, including in particular Article 9 thereof, may in fact exacerbate the problem, inter alia, by making it even more difficult to secure meaningful review of ACGM decisions. The chapter also provides a critique of Article 21-bis of legge 287/1990, which empowers the AGCM to chal­lenge the acts of other Italian administrative authorities that are contrary to competition rules. It is suggested that this provision is a significant but not unproblematic tool both in the context of the Italian constitutional system, where it gives rise to sensitive litigation within the public sphere, and in the context of the decentralized system of EU (competition) law enforcement, with which the supervisory power it confers upon the AGCM risks to overlap.