I fondamenti del diritto antitrust europeo Norme di competenza e sistema applicativo dalle origini alla costituzione europea

Lorenzo Federico PACE

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Thesis defended at the University of Rome La Sapienza in 2004, the present work, published in Italian, is noteworthy in that the author favours an original approach to Community law on anti-competitive practices. Mr. Pace analyses the discipline from a somewhat new perspective as it is eminently historical and theoretical. But, apart from enriching the academic debate, this thesis could particularly satisfy the curiosity of any reader wondering about the origin of the law on anti-competitive practices.

The first part of the thesis is in fact devoted to a historical study of the subject since the 19th century, whereas as a general rule the doctrine is limited to the period after the Second World War. The author then puts forward the classical thesis according to which the law of anti-competitive practices is the result of the industrialization of the 19th century. It is the process of cartelization of the economy of European countries that catalyzes the birth of the state law of cartels, the economic de facto situation leading to a situation of law, ex post facto jus oritur. This historical analysis is not limited to the construction of Europe, but also looks at national legislation, not only American and German, but also French and Italian, during the inter-war period. Finally, it sheds some interesting light on the beginnings of an international law on cartels at the end of the 1920s, particularly in the context of the League of Nations (League of Nations). It is an opportunity to remember or learn that an international network for the control of cartels could have emerged as early as the 1930s.

In the second part of the thesis, the author examines Articles 81 and 82 EC. Here again, the originality of the interpretative method lies in the fact that the thesis traces the history of these two articles from the preparatory work for the Treaty of Rome to the draft Constitution. It therefore concludes that there is a "Community antitrust competence" distinct from national competence, the relations between the two being governed by rules laid down by the Treaty and developed by case law.

The third part is devoted to the exercise of this Community competence in the context of a genuine "European antitrust enforcement system" marking the advent of "European antitrust federalism". By analysing Regulations 17/62 and 1/2003 in succession, the author highlights the contributions of the reform that came into force on 1 May 2004. He acknowledges that this reform has made it possible to deepen the decentralisation of Community antitrust competence, thus allowing the Commission to relieve itself of part of the control. The thesis concludes, however, with a criticism of Regulation 1/2003, considering that it is questionable in two respects. From a legal point of view, Article 6 of the regulation confers jurisdiction to apply Article 81(3) on national authorities in breach of Article 83(2) EC and the principle of direct effect as derived from the Walt Wilhem case-law. It follows from a historical and exegetical reading of Article 83(2) EC that Article 83(2) EC cannot be interpreted as authorising the Community legislature to confer jurisdiction on national authorities under Article 81(3) EC. In practical terms, the author considers that Regulation 1/2003 would not really allow the Commission to be relieved of the control of anti-competitive practices. Indeed, decentralisation calls for an intensification of the Commission’s control over the national authorities, so that the Regulation has not so much allowed a decrease in control as a change in its nature. It is in fact more the question of increasing the resources, particularly human resources, of the Directorate-General for Competition that should be raised. For our part, we believe that, although the author’s demonstration includes relevant developments, it does not, on the whole, convince us.