Italy: Competition policy and consumer protection - A need for a strict application of the proportionality principle

The aim of this paper is to identify the specific limits of the EC competition policy model in addressing all consumer-related risks. In addition, this paper seeks to identify how consumer protection policy, namely unfair commercial practice rules, fills the “antitrust gaps”. Although, in principle, the interaction between these two policies would lead to positive results in terms of higher consumer welfare and more competitive markets, in certain circumstances, it could cause conflicts between the two different interests at stake: consumer welfare on the one hand, and competition on the other hand. In this context, a strict application of the general principle of proportionality would ensure that the application of unfair commercial practice regulations does not result in limiting the commercial freedom of competitors to such an extent that it could be harmful to the establishment of truly competitive market conditions, and in the long term, to the welfare of consumers themselves. This general reasoning is also applicable to the case of Italy where the Italian Competition Authority (ICA) has taken a strict stand against traders through its extensive use of the discretionary power it holds in order to enforce the unfair commercial practice rules as transposed in Italy through LD 146/2007. Even though in principle high consumer protection is more than suitable, when the targets of the ICA intervention are neo-liberalised sectors, the intensity of its activity should be carefully balanced in the light of the general principle of proportionality.