But this reply appears, in the opinion of the undersigned, unconvincing. In the case at hand, the element that remains indeterminate is not only a timeframe or a concept used by the legislator to define the elements of the offence and therefore the rule, but it is the rule overall that is indeterminate: there is no precise identification of the public interest (the ‘legal asset’ for criminal scholars) which the rule aims to protect with its restrictive provisions.
If the indeterminate nature refers to a concept used by the legislator to define the elements of the office, the objection is well grounded and it would be correct to attribute the interpretation of the indeterminate concept to each court (i.e. the discretion of the court[23]). If, rather, the indeterminate nature concerns – as in the case at hand – the identification of the public interest to be pursued (and therefore the identification of the competitive equilibrium to be protected and the relevant market in which this equilibrium should be protected) and the rule to be complied with to ensure the safeguarding of that interest, it is clear that this goes well beyond any mere interpretative effort and requires making a decision, a choice, regarding the interests at stake[24].
In so doing it is clear that the Authority is mainly making choices on the merits (including in technical terms); while the court, in applying the abstract law to the facts, undertakes a process of logical reasoning, in which elements of judgment prevail over will. This diversity in the process arises out of the diversity of values at stake: the judge decides upon the legal situation of single parties whilst the Competition Authority considers the matter of the restriction of a value shared by the public[25]. The public aim of the function of supervisor confers upon the Authority the role of “party” – although impartial, and if you pardon the oxymoron – who acts in the interests of defending the relevant public asset (rectius public interest).
Indeed, the EU refers to this as competition “policy” or market “democracy”[26]. As shown, moreover, by the conferral upon the Authority of powers to consult and make recommendations, which are actual instruments to pursue an institutional “mission”, which has the effect of giving the Authority the lead in establishing competition policies and rediscovering the ethics of freedom through the market[27].

4. The requirement to publish Guidelines as a pre-condition for effective Public Enforcement.
Based on the above, the need for well-defined rules for the exercise of a punitive function with severe penalties such as the function assigned to the Competition Authority is unavoidable. For this reason the comments made by Luciano Di Via, in opening the topic for discussion of this collection of articles, merit support, and I believe most of the presenters agree with these comments, regarding the need for rules, guidelines, pre-established general provisions[28], i.e. criteria to guide market players.
The law of the market, unlike events at the time of the Most Serene Republic of Venice, is a complex law, it is a law that changes, because, as mentioned, it is based on economic theories that are in continuous evolution.
The identification of criteria, rules, guiding principles, obviously not necessarily strict and in any case that are subject to change, is absolutely required and it is specifically this need which justifies the conferral of this power to sanction upon an administrative authority and not a Court, within the sphere of administrative law and not criminal law: as Paola Severino has reminded us, criminal law “restricts the flexibility” of the rule of conduct.
The function of the administrative rule assigned to a directive is by its nature much more flexible and capable of making the adjustments required in the short term in economic matters. This need to pre-establish the criteria for the punitive function is exactly what is represented by the book held by the lion of Saint Mark in its noble paw, because the punitive function cannot be exercised only by sword.

5. Conclusions regarding the use of the sword in the enforcement function.
The sword of justice and the typical enforcement function of the Italian Competition Authority inevitably require a guide, a rule.
Without wishing to call upon criminal doctrine regarding rules that attribute criminal liability through a reference to other legislation (“norme penali in bianco”)[29], it should be said that in this context, as in criminal law, in exercising an administrative function that involves a sanction or penalty or severe penalty, as we have seen based on the economic weight, i.e. the extraordinary economic significance of these sanctions, specific indication of the market rule at a given moment in time is required. On one hand, to give the undertaking the possibility of relying on the rules and, on the other hand, to give market players peace of mind in light of certainty in the rules, the possibility of taking preventative steps, private sector remedies that the entrepreneur can put into place if he/she is aware of the rules of the game in advance[30].
We certainly do not believe it is possible to strictly define and pre-establish all the rules of the market for it is well known that it is impossible to define all the rules in advance. Moreover, if all was established in advanced, the actual function of the antitrust sanction would disappear. Yet, some general rules, some general criteria in the form of a directive that could be changed over time would reduce that degree of uncertainly that exposes the Italian Competition Authority to the risk of excessive judicial review by the administrative courts[31].

^Note

23.  Reference is made to well known studies of A. Raselli, Il potere discrezionale del giudice civile, Cedam, Padua, vol. I and II, respectively 1927 and 1935; the first was published in Studi sul potere discrezionale del giudice civile, Giuffré, Milan, 1975. With regard to the discretion of the Court, compare, A. Barak, Judicial Discretion (1989), trad. it., Giuffré, Milan, 1995. ↑

24.  On this point see the considerations of A. Pera, Autorità di garanzia, Autorità di regolazione e tutela della concorrenza, in Econ. pubbl., 1997, p. 138 seq. ↑

25.  As pointed out in G. De Minico, Antitrust e Consob – Obiettivi e funzioni, cit., p. 267, “the theories put forth by neutralists cannot be accepted, according to which the law allegedly protects varying interests, including the interests of consumers and competitors, because, Law 287/90 subjects their participation in the proceedings to more onerous conditions than those contemplated in general terms in Law 241/90, which would be contradictory if the objective of the law was specifically to defend the position of these parties.” ↑

26.  A similar position is taken by G. Tesauro and M. Todino, Autorità Garante della Concorrenza e del Mercato, in Enc. dir., Aggiornamento, vol. VI, Giuffré, Milan, 2002,  p. 114, who affirm that “the provisions regarding the protection of competition also constitute an instrument of democracy, to the extent it is aimed at safeguarding the general interests of all and preventing the establishment of private sector powers in its pejorative forms, i.e. as a ‘monopoly’“.The Competition Authority pursues objectives which are typically policy related, laid down generally by Parliament, to which it directly reports, and which it is called upon to elaborate within its discretion based on its expertise, which qualifies and gives authority to the institutional policies. On point see G. Majone, The development of social regulation in the European Community: policy externalities, transaction costs, motivational factors, in Aussenwirtschaft, 1996, p. 26. And the theory is to some extent also found in the great work of G. Amato, Il potere e l’antitrust. Il dilemma della democrazia liberale nella storia del mercato, Il Mulino, Bologna, 1998. ↑

27.  See M. De Benedetto, L’Autorità Garante della Concorrenza e del Mercato, Il Mulino, Bologna, 2000, p. 376 which, in referring to freedom, is inspired by the works of G. Amato, Il gusto della libertà. L’Italia e l’Antitrust, Laterza, Rome-Bari, 1998. ↑

28.    Reference may be made to my paper: La predeterminazione delle decisioni amministrative. Gradualità e trasparenza nell’esercizio del potere discrezionale, Esi, Naples, 1997. ↑

29.    I refer to the teachings of Paola Severino, who was my professor of Criminal Law at University (if I might add this autobiography). See in any case the most learned discussions in general, F. Antolisei, Diritto penale, 11th ed., Milan, 1989, p. 45, and G. Fiandaca and E. Musco, Diritto penale, Zanichelli, Rome-Bologna, 3rd  ed. 1995, p. 57. ↑

30.    The matter of the certainty of rules is the topic of many studies, above all see the work of F. Merusi,  La certezza dell’azione amministrativa fra tempo e spazio, speech at the 48th Administrative Law Convention (Varenna, September 2002), now in the book by the same author Sentieri interrotti della legalità, Il Mulino, Bologna, 2007, p. 39 et seq. ↑

31.  This would produce a typical institutional resistance to economic innovation, of the kind referred to by F. Merusi (Diritto contro Economia, Giappichelli, Turin, 2006, p. 1) the effect of “Disordine di un corpo classico” of the acrylics of Emilio Tadini. ↑

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