Rules on Private Antitrust Enforcement and the Value of the Competition Authority’s Decisions: New Limits for Judicial Review?

This paper addresses the issue of the extent of judicial review over the sanctioning measures of the Competition Authority and its possible limitations following the introduction of private antitrust enforcement regulation. The matter is important since it helps to define the position, within the framework of the institutional scenario, of authorities that perform delicate functions in sensitive sectors and operate outside the classic democratic legitimacy circuit. The essay reconstructs the scholarly debate surrounding the sanctioning powers of the Independent Administrative Authorities (IAA) and the evolution in the case law regarding the form of protection guaranteed in their respect. The topic is examined within the more general context of the question of how to properly classify the discretional technical activity of the public administration. Particular attention is given to the decisions of the European Court of Human Rights, which has held that the principle of the fair trial (Article 6 ECHR) applies to the IAAs sanctions and ruled that the full jurisdiction canon must be complied with in the event that the sanctioning procedures do not comply with the necessary guarantees. The paper also analyses certain decisions of the Italian Supreme Court of Cassation on the extent of judicial review that, although adverse, have been transfused into private enforcement antitrust regulation by the decreto legislativo 19 January 2017, no 3. In its conclusions, the essay raises doubts about the compatibility of such a scheme with Article 111 of the Constitution and Article 6 ECHR and suggests an interpretation of the entire regulatory system consistent with the Constitution and the ECHR.