All this amounts to a fully fledged “policy” of competition and not the performance of mere administrative functions of guarantee. We are talking about political objectives, closely linked to the overall performance of the economic system and overall decisions regarding economic policy[10]. This is much more true that the “politics” of competition is often described as composed of two spheres of action: promotion and protection. The first consists of the production of rules aimed at the preservation, introduction or growth of competition. It is the result of a discretionary power and constitutes a political factor characterised by the assessment of the economic or market situation. The consequence of such an analysis is the preparation of a series of actions aimed at attaining certain objectives through the improvement of competitive conditions. The second sphere is aimed at verification of compliance by the economic operators with the provisions laid down in relation to the “political” organs. This stage consists of the preservation of competitive conditions and, in case of deviant conducts, of the application of fines[11].
However, it is in this solid political nucleus that the justification and legitimisation of the assignment of discretionary power to the Italian Competition Authority and indeed in general any anti-trust authority resides. US lawmakers were already well aware of this when they, being the first to do so, introduced legislation regarding the safeguarding of competition and the market[12]. As emphasised by Senator Sherman in a famous speech to Congress, if economic powers are assigned to a single person they give rise to “a royal prerogative incompatible with our form of government“[13]. As it has already been stressed “the first to venture down this road was Adam Smith who did not fail to emphasise the close connections between the liberal state and competitive markets”[14].

3. (Ctd.): the not always unambiguous nature of market rules
Further, when the discussion centres around competition rules it is necessary to be aware of the fact that there exists no unequivocal definition of such rules, that are  subject over time to profound changes due to the fact that their identification is strongly connected to economics and its evolution.
In substance, the rule contained in article 2, paragraph 2, of law no.  287 of 1990 which states that “undertakings which have as their object or result in the prevention, restriction or falsification in a consistent manner of competition within the domestic market or in a relevant part of it are forbidden” is a provision which does not allow the identification of the legal parameter for checking compliance/non-compliance of the actions/conduct of the undertakings.  And the same for art. 3, paragraph 1, where it states that “abuse by one or more undertakings of a dominant position within the domestic market or a relevant part of it is forbidden”. The legal parameter on the basis of which the assessment of compliance/non-compliance must be carried out is only indicated by the aforementioned rules which make use of fully fledged indeterminate legal concepts: “the game of competition”, the “undertakings”, the “relevant market”, “abuse of a dominant position”.
In the presence of such generic reference to indeterminate legal concepts it is obvious that the Authority required to apply the rule will be under an obligation to “fill” the rule or, if it so wishes, codify on a case by case basis or, on a general or abstract basis, the actual scope of the regula juris[15]. Such an activity, which some call regulation but which from a substantial point of view is nothing more than administrative activity,  in any way cann be linked to the exercise of quasi-judicial or neutral powers. The identification or the codification of the rule, even if it is limited to the individual case, always entails the choice of different alternative rules and thus reflection of the interests at stake (at times conflicting[16]) and a resulting “political” decision regarding the structure of interests deemed best[17]. The actual rule[18] which arises out of the decisions of the Competition Authority is nothing more than the fruit of this “political” decision[19].
The rules in question, as doctrine well highlighted some time ago, require more than a finding of the objective existence of facts corresponding to an abstract specific pre-established form, because the terms and conditions used in the regulatory provisions have no automatic and immediate application in reality. The power exercised by the Authority does not require “the mere knowledge of the existence of a fact, but the degree, the quantity in which it is actually present. The conditions for the exercise of the power by the Authority are therefore subject to, in addition to an inspection, an assessment as well, i.e. a valuation of the extent to which they are present”[20].
However, in carrying out this assessment the Authority cannot avoid reinventing economic science which, as we know, is not an exact science. The latter does not agree upon and is not unambiguous in identifying the natural order of the market (to use the expression used in the provision, the “competition game”), and does not even agree upon identifying the relevant market. It follows that, both the identification of the relevant market for the purposes of the application of the rule, and the identification of the natural order of that market (and any abusive manipulations) involves and requires an evaluation on the merits; requiring an evaluation which, based on technical and economic knowledge, which is open to opinion, becomes a policy choice of the optimal relevant market and, within that market, the optimal equilibrium between demand and supply[21].
With regard to this situation we could reply (as was actually replied) that this merely involves interpreting the rule and the courts are able to carry out this task of “giving meaning” to the rule if there are indeterminate legal concepts[22] (for example, in the case of a rule that attributes criminal liability through a reference to other legislation, “norme penali in bianco”).

^Note

10.  Thus A. Frignani e M. Waelbroeck, Disciplina della concorrenza nella CEE, Giappichelli, Torino, 1996, p.7 s. ↑

11.  Thus F. Gobbo, Il mercato e la tutela della concorrenza, Il Mulino, Bologna, 2001, p. 16 s. ↑

12.  The reference is obviously to the Sherman Act del 1890.  For more information see V. Mangini, La vicenda dell’antitrust: dallo Sherman Act alla legge italiana n. 287/90, in Riv. dir. ind., 1995, p. 176 ss.In the United States the following are amongst the scholars who argued in favour of the “political nature” of the US antitrust laws albeit with slightly different views, H. Thorelli, The Federal Antitrust Policy: Origination of an American Tradizion, John Hopkins, Baltimore, 1954;  E. Fox, The Modernization of Antitrust: a New Equilibrium, in Cornell Law Review, 1980, n. 66, p. 1140 ss.;  D. Millon, The Sherman Act and the Bilance of Power, in The Political Economy of the Sherman Act. The First One Hundred Years (a cura di E. Th. Sullivan), Oxford University Press, Oxford, New York, 1991, p. 111 ss. Contra  R. Bork, The Antitrust Paradox: a Policy at War with Itself, Basic Books, New York, 1978, passim. ↑

13.  The quote is from M. Giampieretti, Il principio costituzionale della libera concorrenza: fondamenti, interpretazioni, applicazioni, in Dir. soc., 2003, p. 472. ↑

14.    The pertinent observation is from M. Giampieretti,  op. ult. cit., p. 468 ss.,  who connects the positions of Smith  to the concept of “limited power” expounded in the liberal thinking of J. Locke, Two Treatises of Government (1690), Italian translation: Due trattati sul governo, Utet, Torino, 1992. ↑

15.    As the Council of State (Section VI, 24 May 2002, no. 2199, RCAuto; Id., 2 March 2004, no. 926, Pellegrini/Consip) has also pointed out for some time the authority makes an enquiry as to the facts followed by a phase of “contextualisation” of the rules safeguarding competition. These rules, which  make use of “indeterminate legal concepts“, must be adequately interpreted for the purpose of identifying the constituent elements of the alleged wrongdoing.This is not the place to examine indeterminate legal concepts. But it is to be recalled that it was by taking these concepts as their starting point that the German school of administrative law developed the notion of administrative discretion. The reference is to the work of E. Bernatzik and Tezner (for wider references on this point see e Pretis, Valutazione amministrativa e discrezionalità tecnica, Cedam, Padova, 1995, passim  e P. Lazzara, Autorità indipendenti e discrezionalità, Cedam, Padova, 2001, especially p. 118 ss.). Where the discretionary administrative activity is understood as an operation that interprets indeterminate legal concepts (and in this sense enforcement activities). For a contemporary review of this thinking see the study by Benvenuti, La discrezionalità amministrativa, Cedam, Padova, 1986 who brought it up to date with reference to the work of the Antitrust Authority, Id., Interpretazione e dogmatica nel diritto amministrativo, Giuffré, Milano, 2002, p. 148 ss. Finally, F. Cintioli, Giudice amministrativo, tecnica e mercato, Giuffré, Milano, 2005, p. 97 ss. ↑

16.  On this point Guido) Rossi, Il conflitto di obiettivi nell’esperienza decisionale delle Autorità, in Regolazione e garanzia del pluralismo. Le Autorità amministrative indipendenti, Giuffrè, Milano, 1997, and in Riv. soc., 1997,  p.  273 ss. ↑

17.  The reference is to the reconstruction of discretion by M.S. Giannini, Il potere discrezionale della pubblica amministrazione, Giuffré, Milano, 1939, passim. This position was recently taken by F.G. Scoca, La discrezionalità nel pensiero di Giannini e della dottrina successiva, in Riv. trim. dir. pubbl., 2000, p. 1045 ss. ↑

18.  For more details on the question of the rule reference must be made to the study by F.G. Scoca, Contributo al tema della fattispecie precettiva, Università degli studi di Perugia, Città di Castello,  1979. ↑

19.  The best administrative case precedents also take this view. The Council of State (again in the decision of Section VI, 24 May 2002, no. 2199, at point 1.3.1) is well aware that the Authority performs at least in part a discretionary activity and reserves the right to exercise discretion through the adoption of measures dispensing with or derogating from articles 4 and 25 of law no. 287 of 1990. ↑

20.  See also M. Ramajoli,  Attività amministrativa e disciplina antitrust, Giuffré, Milan, 1998, p. 337. ↑

21.  On point see G. De Minico, Antitrust e Consob – Obiettivi e funzioni, Cedam, Padova, 1997, p. 268. More recently F. Cintioli, Giudice amministrativo, cit., p. 107.With regard to the arbitrary nature of these concepts, see N. Irti, La polemica sui concetti giuridici, in Riv. trim dir. proc. civ., 2004, p. 13 seq., also in Nichilismo giuridico¸Laterza, Rome-Bari, 2004, p. 51 seq. ↑

22.  On point see M. Clarich, Per uno studio sui poteri dell’Autorità Garante della Concorrenza e del Mercato, in Dir. amm., 1993, updated in the book by the same author, Autorità indipendenti. Bilancio e prospettive di un modello, Il Mulino, Bologna, 2005, p. 85 seq. See in particular p. 96, according to which “the exercise of such an investigative power presupposes a series of evaluations, also of a complex nature, by the Authority, which however does not contemplate an assessment and a consideration of different interests other than the general interest of complying with the applicable rule”. It follows that “the task carried out in this way is not actually any different than the task performed by the civil or criminal court called upon to classify and apply the regulatory elements leading to the imposition of a sanction to the actual facts of the case.” ↑

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