Il riparto di competenze tra autorità indipendenti nella repressione delle pratiche commerciali scorrette

Since the adoption of the European directive on unfair commercial practices, its provisions started to apply alongside the existing sector-specific European legislation on consumer protection. With the aim of ensuring a coherent system of European consumer law, the directive stated that, in the case of conflict between its rules and other Community law regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those aspects. The directive however did not mandate any enforcement mechanism at the national level. The Italian piece of legislation which implemented the European directive has conferred a general enforcement power on unfair commercial practices to the national antitrust authority. Italian law did not, however, state explicitly whether the agency is also allowed to intervene in markets subject to the oversight of a different sector specific authority. This issue has been raised before the Italian administrative law Court, which excluded the general competence of the antitrust authority in fields where the contested practices were also considered by sector-specific regulation. A recent reform in Italian law, by contrast, has accorded to the antitrust authority an exclusive competence to combat unfair commercial practices also in regulated sectors, after having consulted the sector-specific regulator. An exception to the general competence of the antitrust authority occurs when the violation of a sector-specific regulation “does not result in an unfair commercial practice”. The rule, however, does not specify which is the competent authority for determining whether a breach of sector-specific regulation consists in an unfair commercial practice. Furthermore, it does not clarify whether or not the opinion of the sector-specific authority is binding for the antitrust authority. Therefore, the reform seems to leave margin for excluding the intervention of the antitrust authority on regulated activities and for leaving to the sector-specific regulator the discretion to determine the fairness of the commercial practices in its field. In the light of these different approaches, this paper will attempt to examine the benefits and the drawbacks of the enforcement mechanisms endorsed by the Court and by the Italian legislator. The aim of the work is to assess, from a legal perspective, which role should the general antitrust authority play in the enforcement of unfair commercial practices in markets subject to sector-specific regulation. The reasoning of the Court has been widely criticized by the legal scholarship for having interpreted the ne bis in idem principle on the conflicts of norms with the aim of regulating a conflict between enforcement authorities. Moreover, the exclusion of the legitimacy of the antitrust authority’s intervention in recently liberalized markets seems to conflict with the institutional choice of exploiting possible synergies between competition law and consumer law enforcement. Finally, the fragmentation of competences affirmed by the Italian judges does not seem to be compatible with the European goals of the uniformity in the application of the directive and the effectiveness of the national enforcement systems.