Relaxing whilst doing Competition Law is not an Oxymoron

Archive for May 23rd, 2011

Enforcement Gap?

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While in Sorrento for the first conference of the Associazone Antitrust Italiana, I learned an interesting fact about Italian competition law. For a few years now, the Italian Antitrust Authority has apparently shifted the quasi-entirety of its enforcement resources to the investigation of unfair trading practices. As a result,  little, if any, enforcement initiatives are undertaken on the basis of the Italian competition rules. The daily business of Italian competition lawyers has thus changed dramatically, and many have had to learn a new discipline.

Interestingly, the rationale for this strange enforcement prioritization agenda has to do with media exposure. Because unfair trading practices cases require little resources, the competition authority can investigate and decide many of them and thus appears frequently in the press. In contrast, antitrust cases are more costly, lengthy and uncertain. Their political, social, and media benefits are much more limited.

Now, I wonder if the Italian CA, and more generally multi-function CAs, can lawfully decide to renege on competition enforcement, and allocate their resources to other areas (e.g., consumer protection, unfair trading practices, etc.). After all, an enforcement agenda of this kind undermines the principle of effectiveness of Article 101 and 102 TFEU enshrined in Article 35(1) of Regulation 1/2003. Such a practice creates an enforcement gap on Italian territory which to me, is incompatible with the twin logic of decentralized & homogeneous enforcement which blows on the EU competition system.  Just think for a minute to the situation of a French firm facing exclusionary tactics from a dominant Italian incumbent. Faced with a CA reluctant to open proceedings, the remedies open to the French firm are drastically limited.

Of course, the next question is: what can firms do to induce the Italian CA to revisit its enforcement agenda? Besides asking DG COMP to put pressure on Italian officials, the most obvious course of action involves a complaint before the Commission against Italy under Article 258 TFEU for failure to comply with EU law.

The first conference of the Associazone Antitrust Italiana was a great success with approximately 150 participants. I attach my slides and the text of my speech.

Oral Intervention – Speaking Notes – N Petit

Slides NP – Judicial Review in European Union Competition Law – Final

Written by Nicolas Petit

23 May 2011 at 11:58 pm

Posted in Events