Abstract

The survey of the activity of both European and national antitrust authorities in uncovering and suppressing anti-competitive conduct by banks shows that not all such conduct is actually monitored. And when some epiphanies are finally perceived and declared as such, no sanction is imposed. In fact, we often witness a pantomime in which the offender confesses the fact, promises to divest himself of the illicit practices, and then continues as though nothing had happened, in the absolute hands-off attitude of the organs charged with control and repression. Not dissimilar is the behavior of the courts of merit and legitimacy which simply, very often, seem refractory to the enforcement of both European and domestic antitrust legislation. Equally, the legislature proceeds undaunted to set tariffs and levies contrary to both Eu norms and its own case law, amidst general indifference. Thus, we arrive at the ruling of the Italian Supreme Court, no. 41994/2021, which does not achieve the effects intended by the Kirchberg court in recommending, at every turn, the principles of equivalence, effectiveness and deterrence, but rather seems to zero out the risk of any sanction for those who violate antitrust rules and trigger, in this way, a perverse incentive effect.