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 bound to consistently apply the principles of EU law, the national jurisdictions independently decide the structure of, and the powers granted to, their NCAs to ensure that they fit the respective administrative and judicial systems and traditions. Consequently, antitrust enforcement systems vary significantly from one Member State to another.

To be constrained by the same rules on the merits while being subject to procedures that considerably differ, does indeed create imbalance for companies (most of the time active throughout Europe) and put the non-contradictory application of competition law and the functioning of the EU internal market at risk.

Under such a framework, the role of competition lawyers should also be to stimulate a debate on the best practices throughout Europe, so as to guarantee an homogeneously fair, transparent and swift procedure for the benefit of all parties, in investigations that-as is often the case-can result in hefty pecuniary penalties (up to 10 percent of the group’s worldwide turnover).

In an endeavor to contribute to this task, this article, by describing the main differences between the procedural rules applied by the Commission and those enforced by the Italian authority, attempts to highlight how the substantial procedural differences may significantly alter the achievement of a truly due process, and the scope of the companies’ right of defense and the way they can exercise it.

In particular, this paper focuses on: (i) the consequences of proceedings being formally opened at different stages by the Commission and the Authority, (ii) the differences in the companies’ access to the case file, (iii) the prominent role played in the European Union by the Hearing Officer (“HO”), and (iv) the consequent different structures of final hearings.

As will be shown, in the investigative phase the Italian procedure seems to guarantee due process more than the EU regime, while the reverse is true for the decisional phase, which appears more effective and less formalistic in Europe than in Italy.

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