ARTICLE 21-BIS OF LAW NO. 287/1990: AN ANALYSIS OF RECENT ADMINISTRATIVE CASE LAW

This writing aims to analyze the recent “competition-advocacy” power conferred upon the Italian Competition Authority by Article 21-bis of Law no. 287/1990, in light of the first set of administrative case law on this issue and it aims to present an initial assessment of how the regulation has been applied to facts, while at the same time providing one or more critical observations regarding the procedural and substantive boundaries created by administrative jurisprudence following the first set of administrative complaints filed by the Authority. This analysis will be set forth in two parts. First, the so-called “preliminary” issues raised by the article will be addressed. Specifically, an attempt will be made to understand whether a pre-complaint phase is required; on what day/date the clock should begin ticking for the purposes of presenting the initial determination; and finally, the deadline for filing the administrative complaint. In the second part the Authority’s goal in filing of the complaint will be examined to determine whether these purported antitrust violations are actually a pretext for more broadly accusing an administrative entity of failing to tailor its rules and regulations to legitimate public interests