The Italian Guidelines on the Method of Setting Fines. A (Half) Step Towards Transparency and Deterrence

40 Pages Posted: 8 Oct 2015 Last revised: 15 Oct 2015

See all articles by Federico Cesare Guido Ghezzi

Federico Cesare Guido Ghezzi

Bocconi University - Department of Law

Gian Diego Pini

Bocconi University; University of California, Berkeley - School of Law; University of Milan - Department of Public, Civil Procedure, International and European Law

Date Written: October 7, 2015

Abstract

In this paper, we examine the new Italian Guidelines on the method of setting fines for antitrust law infringements in the broader context of Italian antitrust public enforcement.

The analysis of the new Guidelines is interesting for at least three reasons. Firstly, in drafting the new guidelines the Italian Competition Authority (ICA) adopted a comprehensive approach, taking into account that the method of setting fines may affect all the other elements of the sanctioning system. Thus, even if the Guidelines deal specifically only with the quantifications of fines, many elements of the new methodology have been designed to affect other important areas of the antitrust enforcement, particularly the leniency programs.

Secondly, the new Guidelines clearly witness a shift towards an antitrust enforcement system based on deterrence. Unfortunately, the ICA’s very formal interpretation of the notion of undertaking undermines, if not completely annuls, the efforts towards heavier fines on naked cartels and exclusionary abuses of dominant position.

Finally, in choosing the quantification method, the ICA largely followed the 2006 EU Guidelines on the method of setting fines. This should not come as a shock considering that Italian antitrust law closely mirrors Articles 101 and 102 TFEU. It should be pointed out, however, that the ICA resisted to the pleas of many commentators, urging it to follow other more lenient or in any case different national models. We think that, also in light of the allocation principles laid down in the Notice on the cooperation within the network of European Competition Authorities, a high degree of harmonization between the EU and the Italian antitrust sanctioning systems is beneficial to assure a level playing field for companies operating in the Italian markets.

Keywords: Italian Competition law

Suggested Citation

Ghezzi, Federico Cesare Guido and Pini, Gian Diego, The Italian Guidelines on the Method of Setting Fines. A (Half) Step Towards Transparency and Deterrence (October 7, 2015). Bocconi Legal Studies Research Paper No. 2670845, Available at SSRN: https://ssrn.com/abstract=2670845 or http://dx.doi.org/10.2139/ssrn.2670845

Federico Cesare Guido Ghezzi (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Gian Diego Pini

Bocconi University ( email )

Italy

University of California, Berkeley - School of Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

University of Milan - Department of Public, Civil Procedure, International and European Law ( email )

Via Festa del Perdono 7
Milano, Milano 20121
Italy

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