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NUMERO 24 - 29/12/2010

 The judicial application of european competition law

Since 1990 Italy has a two pillar system of competition law enforcement: the public enforcement by the Italian National Competition Authority, the so called Autorità Garante per la Concorrenza e il Mercato-AGCM, established by Law 287/1990, and also a member of the European Competition Network-ECN, and the private enforcement before National Courts.
In private litigation both claims and counterclaims can be filed on the basis of European and national competition law, and a mere defence can be raised invoking antitrust rules. In this framework both follow-on actions, following a decision of the AGCM, and stand-alone actions are provided. However, private actions before Courts have not been very frequent, most of them in any case being follow-on actions. A gradual increase in private litigation has been registered in the last two or three years, mostly before the Milan and Rome Courts and in the field of compensation of damages. EC Regulation 1/2003 on modernization of competition law, decentralizing competence from the Commission to the National Courts, has enhanced the role of national judges, and might have contributed to the statistical increase in private actions before the Courts; the entry into force of the Regulation and its direct application has added specific rules to the Italian set of antitrust rules, but national competition and procedural law has not been modified to facilitate its implementation. In any case Regulation 1/2003 has favoured networking among Italian and European competition law judges; Italian Judges are vice-president and members of the Association of European Competition Law Judges-AECLJ. The Italian Government, the AGCM and several judges have taken part in the consultations on the Staff Working Paper on Damages Actions for Breach of the EC antitrust rules and addressed comments to Commission; most of the Commission White Paper recommendations are already part of the Italian legislation on compensation of antitrust damages ( see infra); in case of non compliance of the national legislation with the White Paper guidelines - that is, essentially on the point of the binding effects of NCA decisions - no modification in the existing rules is envisaged. In any case the White Paper and the so called Oxera Study on non binding guidance for courts in quantifying antitrust damages have been circulated among national judges and constitute the basis for a set of shared best practices... (segue)

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