Enforcement del diritto antitrust e risarcimento del danno

The article analyses the relationship between the payment of damages for breach of competition law, and both private and public means of enforcement of antitrust law. This perspective allows, first of all, to highlight the effects which derive from the actions for damages, which can be seen as, not only but mostly, as means for enforcing antitrust law: among them, there are relevant consequences related to the applicable legal framework and procedures; to the structure of the laws which lay down the requirements for liability; to the capacity of acting as plaintiff; and to the legal interests and rights, which are protected by the law. These issues are considered in light of the EU, Italian, and some other Countries’ jurisprudence. The perspective of the substantial application of the law allows also to draw, or rethink, the theoretical and actual balance between legal systems where the enforcement is done through traditional administrative means, and legal systems which, to this extent, make available private law remedies: in this respect, the article tries to identify the reasons why the enforcement by using private law remedies is ineffective, draws the picture of long-expected EU reforms, and shows the deficiencies of legal provisions adopted only within the framework of antitrust law. Finally, the article considers the mutual influences which changes to the private law and to the public law produce, having regard to the effectiveness of the enforcement, both in terms of current positive law and de jure condendo. In this regard, the present study pays particular attention to (already enacted and long-expected) reforms concerning public enforcement, and capable to affect the effectiveness of the right to damages, in compensation of antitrust damage and torts, or the balance between private and public enforcement of antitrust law (ex multis, decisions with commitments, leniency programs, binding effect of antitrust authorities’ acts, the introduction of mechanisms for public compensation or appreciation of the payment of damages as an element of mitigation of antitrust penalties). Under the guidance of putting forward enactable proposals, the present study takes into account some of the proposals outlined by foreign doctrine and jurisprudence, especially the American and English ones. The outcome of the analysis is that, at least within the European antitrust systems which are traditionally and mainly oriented to administrative enforcement, a follow-on model of private remedies is now having the upper hand; coherently, the public enforcer will probably have to play a proactive role in addressing damages actions, in a much broader sense than it has been requested so far.