Summary: 1. The Antitrust Authority and the Lion of Saint Mark: an introduction – 2. Public Enforcement and need to pre-establish the rules – 3. (Ctd.): the not always unambiguous nature of market rules – 4. The need to publish the Guidelinesas a prerequisite for effective Public Enforcement – 5. Conclusions on the use of the sword in the enforcement function.
1. The Antitrust Authority and the Lion of Saint Mark: an introduction
The task of addressing the question of antitrust sanctions has been greatly simplified by the analysis conducted by Paola Severino[1]. As we have seen, including from the point of view of scholars of criminal law, it is agreed that the power to impose sanctions assigned to the Competition Authority is typically an administrative function, and it is clear that it is an administrative function even from the point of view of European law[2].
But the real question that this conference seeks to address is not so much the nature of the antitrust sanction function but rather the punitive character, indeed the strongly punitive nature, of this power to impose sanctions. The various contributions, which have been gathered in this volume, make plain the irrelevance of the question of the nature of the power whilst conversely it is absolutely essential to enquire into the dual content of this power.
I reflected a great deal as I listened to the various contributions concerning the duality of the content of this power in a vain attempt to achieve unity between them, then I looked up and saw that the problem under consideration was resolved sculpturally by the image on the back wall of the hall hosting the conference which gave rise to this volume[3].
The reference is to a very beautiful marble bas-relief which depicts the Lion of Saint Mark yet the image of that lion gives an awe-inspiring synthesis of the dual function of the antitrust plenitude of power. The Lion of Saint Mark, as is known, stands with a book in one front paw and a drawn sword in the other[4].
That book is not the Gospel. Scholars, some time ago, established that it is the book of wisdom, the rules of social co-existence and law. But which law we ask ourselves? There can only be one answer: the law of Venice, the law of commerce and the market, the Lex mercatoria.And in the other paw it holds firmly and drawn the sword which is the symbol of public power guaranteeing the effectiveness and the full application of the law and justice.
It is this dual function which every competition authority discharges. On one hand it makes visible the rules of the market and on the other it guarantees their effectiveness through the use of force, through public enforcement, just like the Lion of Saint Mark.
2. A book which in part still needs to be written: the need to pre-establish the rules.
It is a widespread opinion that the Competition Authority is not an institution which operates “in” the market but it is a public body which acts “for” the market[5], outside of it, as a guarantee of that natural order which on the market should operate virtuously, in accordance with Adam Smith’s theory of the “invisible hand“[6].
Alongside this undeniable function as a guarantee and safeguard of competition, however, the Competition Authority performs no less significant functions which are no mere guarantee or neutral arbitration but go in the direction of fully fledged “regulation” of the market[7]. The protection of competition – from a domestic point of view as well as at community level – stands alongside the traditional neutral function as a guarantee for the natural order of the market, including “political” objectives in respect of the market; this is in addition to the frequent use of neutral powers, assigned as a guarantee of the natural order of the market, for the purpose of pursuing “political” objectives in respect of the market[8].
Furthermore, as recognised in the most authoritative economic doctrine, the function of the antitrust rules is to conciliate two basic objectives which do not coincide, and this has as a prerequisite the taking of “discretionary” decisions to balance out strongly opposed needs[9].
On one hand, the operation of competition provides for the strengthening of the better organised economic operators able to exploit economies of scale by widening their dimensions and the market naturally favours the disappearance of undertakings which are unable to achieve economic results because they are inefficient. This, in substance, entails a further strengthening of those productive structures already endowed with a highly competitive capacity. In practice, the decisions and the market opportunities could be centralised in a single body, thereby giving rise to a natural monopoly or an oligopoly which sees the market for a product in the hands of a reduced number of economic operators.
On the other hand, such an instrument, in addition to supporting those companies which have demonstrated particular robustness, technological innovation and inventiveness at an organisational level and which are able to acquire a significant position in respect of other rivals, must ensure the efficiency of the entire competitive system. Conciliating the safeguarding of such economic situations through the maintenance of the competitive structure is no small matter. A compromise must be achieved such as to ensure a stable dose of sufficient competition without penalising the undertakings which, operating correctly, have achieved pre-eminence over the others.
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”).
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].
See Michel Petite[32] who reminds us that European Law requires unlimited judicial review by the administrative courts. How not to agree with the need for unlimited jurisdiction?[33]. But unlimited jurisdiction, precisely because it is not the jurisdiction of a supreme Court and therefore formal, must be exercised gracefully – in terms of level and with measured and limited quantity – if, it is true, as we are told that the first instance administrative judges (or more specifically the first section of the Lazio Regional Administrative Court), overrule eighty percent of the decisions of the Competition Authority, this is not because the Competition Authority has not done its job well, but because the Court does not know the rule, or the parameter of its powers of review go beyond, go well beyond, what is necessary[34].
Again for this reason it is proper for the Authority to be able to adopt criteria, guidelines, which I believe go exactly in the direction of satisfying the entrepreneur and the market player who will know how to behave, and if they behave poorly knowing the rules they may rightly merit a severe penalty, according to the principle of proportionality and appropriateness of the penalty considering the unlawful conduct of which in this case it would certainly be well aware.
We will stop here in the belief that acknowledging the Authority’s function as regulatory means allowing it to enact rules in advance, and in the belief that a few additional pages in the book of the Rules of commerce, that the Lion of Saint Mark holds with its paw may increase the effectiveness of the (and also less ferocious) use of the sword held in the other paw as well.
This is the edited transcript of the “Competition law sanctions and the relations between administrative and criminal law” Conference held in Rome on the 24th October, 2013.
Note
1. See the essay by P. Severino, in this volume p. ss. ↑
2. As M. Petit recalls in this volume, see above p. ss. ↑
3. The reference is to the hall of the thirteenth century refectory in Palazzo Venezia in Rome. ↑
4. There is copious literature on the Lion of St Mark. See Giorgio Aldrighetti, L’araldica e il leone di San Marco. Le insegne della provincia di Venezia. Marsilio, Venezia 2002. And also G. Aldrighetti and M. De Biasi, Il gonfalone di San Marco. Analisi storico-araldica dello stemma, gonfalone, sigillo e bandiera della Città di Venezia, Venezia, Filippi Editore, 1998. ↑
5. A distinction which recalls, although it has a different meaning, that proposed by A. Pace, Libertà “del” mercato e “nel” mercato (1991), in La Costituzione economica, Cedam, Padova, 1997, p. 175 ss. ↑
6. The reference, as can be imagined, is to A. Smith, An Inquiry onto the Nature and Causes of the Wealth of the Nations (1776), Italian translation La ricchezza delle nazioni, Utet, Torino, 1987. ↑
7. As emphasized “contrary to what is frequently stated in the US books which are full of expressions such as regulation of competitive practices to identify the actions taken by the Antitrust Division of the Department of Justice, the rules governing competition (in other words compliance with the competition practices imposed by the rules and applied by a public authority) do not form part of the regulations, indeed the regulation in the opposite manner of the functions safeguarding competition takes the form of interference which are not external to the market but which are part of the market in the sense that they contribute to making it consistent, S. Cassese, Regolazione e concorrenza, in the volume with the same title by G. Tesauro e M. D’Alberti, Il Mulino, Bologna, 2000, p. 12 s. By way of these actions “the state becomes a player on the market. It lays down prerequisites for the market and carries out transactions which replace the transactions of the private individuals and requires private individuals to perform the transactions which are not carried out on the basis of private autonomy”, thus F. Merusi, Il potere normativo delle autorità indipendenti, in the volume by G. Gitti, L’autonioma privata e le autorità indipendenti, Il Mulino, Bologna, 2006, p. 47. This is an open question which is not always clear to anyone who has dealt with regulations. In addition to the major studies mentioned above G. Tesauro and M. D’Alberti, Regolazione e concorrenza, see from a sociological point of view, A. La Spina e G. Majone, Lo stato regolatore, Il Mulino, Bologna, 2000 and, from a legal point of view, L. Giani, Attività amministrativa e regolazione di sistema, Giappichelli, Torino, 2002. See also for the sake of completeness, S. Frego Luppi, L’amministrazione regolatrice, Giappichelli, Torino, 1999 e M. Antonioli, Mercato e regolazione, Giuffré, Milano, 2001. ↑
8. As regards the significance assumed by the so-called “policies for competition” see the comments by A. Pera, Concorrenza e antitrust, Il Mulino, Bologna, 3^ ed., 2005, p. 112 ss. Even our own Constitutional Court recognises that the protection of competition “can no longer be understood solely in a static sense, as a guarantee of actions to regulate and restore a lost equilibrium, but also in a dynamic usage well-known to community law, which justifies public measures aimed at reducing imbalances, favouring the conditions for a sufficient development of the market or create competitive conditions”. Thus, the Constitutional Court., 13 January 2004, no. 14, in Giur. cost., 2004, p. 237 ss., with comments by A. Pace, Gli aiuti di Stato sono forme di “tutela” della concorrenza, p. 259 ss.; G.P. Dolso, Tutela dell’interesse nazionale sub specie di tutela della concorrenza?, p. 265 ss.; C. Bozzacchi, Principio della concorrenza e aiuti di Stato tra diritto interno e diritto comunitario, p. 277 ss. Also the Constitutional Court of 27 July 2004, no. 272, ivi, 2004, p. 2748, with comments by S. Bellomia, A proposito di servizi privi di rilevanza economica e di gestione dei beni culturali, p. 2760 ss.; as well as in Servizi pubblici e appalti, 2004, p. 831 ss., with comments by A. Police e W. Giulietti, Servizi pubblici, servizi sociali e mercato: un difficile equilibrio. ↑
9. One need only think of the relevance of the social interests involved. On this topic see L. Di Via, Antitrust e diritti sociali,E.s.i., Napoli, 2004, especially p. 24 ss. ↑
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.” ↑
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. ↑
32. In the article published in this work, supra, p. .. ss. ↑
33. The reference is to my work, Il ricorso di piena giurisdizione davanti al giudice amministrativo, vol. I and II, Cedam, Padua, respectively 2000 and 2001. ↑
34. Reference is made to my work Tutela della concorrenza e pubblici poteri,Giappichelli, Turin, 2007, Chapter IV. ↑