Informations and abstract
Keywords: Antitrust; Cartels; Antitrust Fines; Fining Policy; Deterrence; Compliance Programmes; Notion of Undertaking; Italian Competition Authority; Italian Antitrust Fining Guidelines; Public Enforcement; Recidivism.
In this paper, we examine the new Italian Guidelines on the method of setting fines for antitrust law infringements in the broader context of Italian antitrust public enforcement. The analysis of the new Guidelines is interesting for at least three reasons. Firstly, in drafting the new guidelines the Italian Competition Authority (ICA) tried to adopt a comprehensive approach: in other words, it took into account that the issuing of the Guidelines may affect all the other elements of the sanctioning system. Thus, even if the Guidelines deal specifically with the quantifications of fines, many elements of the new methodology have been designed in order to affect other important areas of antitrust enforcement, like leniency programs. Secondly, the new Guidelines clearly witness the shift towards an antitrust law enforcement system based on deterrence. A very formal interpretation of the notion of undertaking may, however, limit, if not completely annul, the ICA's efforts towards a tougher attitude against naked cartels and exclusionary abuses of dominant position. Finally, in choosing the quantification method, the ICA largely took inspiration from the 2006 EU Guidelines on the method of setting fines. This should not come as a shock, considering that Italian antitrust law very closely mirrors Articles 101 and 102 TFEU. It should be pointed out, however, that the ICA resisted to the pleas of many commentators to follow other more lenient or in any case different national models. We think that, also in light of the allocation principles laid down in the Notice on the cooperation within the network of European Competition Authorities, a maximum level of harmonization between the EU and the Italian antitrust sanctioning systems and policies is of paramount importance in order to assure a level playing field to companies operating in the Italian markets.