BIBLIOGRAPHY: CASTELLI Laura, Giuffrè editore, Milan, 2012, 236 p.

Disciplina antitrust e illecito civile

European competition law can be enforced by both public authorities (European Commission, national competition authorities) and private parties (competitors, suppliers, consumers). In recent years, much attention has been given to private enforcement of competition law, and much has been written about it. This debate was significantly intensified by the decisions in Courage v. Crehan (Case C-453/99) and Manfredi (Joined Cases C‑295/04 to C‑298/04), which established that “any individual” can sue for damages consequent to breach of antitrust rules. Input to the debate came also from the European Commission’s White Paper on damages action for breach of EC antitrust rules, published in 2008.

However, as often is the case, transposing and applying principles or apparently “clear rules” adopted or created at EU level into domestic legislation is not necessarily an easy task. Indeed, private enforcement of competition law at national level remains for many EU jurisdictions a goal yet to achieve. This is also the case for Italy. The book deals with the remedy of compensation for damages caused by breach of antitrust rules.

In the first part, the work focuses on the examination of the illegal conduct and the fate of the so-called “downstream agreements” (or downstream contracts), which are based on violations of competition rules. The author navigates through the different and conflicting theories emerged in the academic debate, as well as the cases decided by Italian courts. For example, it is disputed if the fate of the downstream agreements is to be found in the lack of lawful content or purpose. Often one of the party entering in a downstream agreement is not aware of the violation of antitrust rules which has taken place in a previous moment at a different level. In this case, the contract is not void. At the end of the analysis, the author comes to the conclusion that, except in some specific cases, the only applicable remedy is compensation for damages suffered.

In the following two chapters, the author focuses on recent national and EU interventions in the field, especially in the light of regulation No 1/2003, and on the interference between Italian courts and the competition authority in the assessment of the offense. The author points out that, in the silence of laws and regulations, the court should be free to decide if a specific behavior infringes competition law and what role should be recognized to an administrative act deciding on the same behavior. In the fourth chapter, attention is placed on issues relating to locus standi, the causal link between abuse and damage, the relevance of the subjective elements and the prescription of the right to compensation. The final fifth chapter deals with the quantification of damages.

The author always provides a comprehensive analysis of different theories and of the evolution of case-law. The overall impression emerging from the book is that the debate on the relation between contract law, compensation for damages and infringement of competition rules is far from being closed.

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Riccardo Sciaudone, Disciplina antitrust e illecito civile, September 2014, Concurrences Review N° 3-2014, Art. N° 67994, pp. 243-249

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