Same Rules, Double Enforcement: A Comparative Analysis of European Union and Italian Procedural Rules on Anticompetitive Agreements

Francesco Russo, Claudio Tesauro, Jun 28, 2013

Competition law enforcement in the European Union is based on a system of parallel competences in which the European Commission and the national competition authorities of the Member States can apply Article 101 (prohibiting anticompetitive agreements) and 102 (prohibiting abuses of dominant position) of the Treaty on the Functioning of the European Union. Cases are allocated according to the principle of “proximity”: If the conduct under scrutiny directly affects competition within a given territory, the case is allocated to the relevant NCA; if the conduct affects the entire EU market, or a substantial part of it, the case is dealt with by the Commission.

Furthermore, as the European Union has exclusive legislative competences on competition law vis a vis Member States (see Article 3 TFEU), the Competition Act of each Member State substantially mirrors the European rules and, in any case, cannot contain provisions in contrast with the European principles. Similarly, decisions of the NCAs and national judges cannot contradict previous decisions of the Commission.

In Italy, these principles are enshrined in the first article of the national Competition Act (Law no. 287 of 1990), whose rules must be interpreted in light of the principles on competition within the EU legal system.

However, the NCAs, including that of Italy, retain much autonomy over the procedural aspects of antitrust proceedings. Indeed, although all are b…

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