The article reviews the administrative judicial decisions in antitrust matters, with the aim of going beyond the judicial review as “declaredµ or “definedµ and checking whether the notion of so-called technical discretion – assuming it can still be considered useful – justifies a different type of judicial review; or if, on the contrary, it poses a “fake problemµ, thus questioning its autonomy from the notion of administrative discretion. In particular, regarding the activity of the Antitrust Authority, the problem is linked to the fact that it has developed action modules through which, in addition to the function of repression of competitive abuses, it tries to encourage the development of competition by acting dynamically on the market (for example, with decisions negotiated through commitments or even through advocacy functions). It seems helpful, in order to verify the effective and concrete judicial review, to first distinguish the “typeµ of power exercised by the authority; and, in a second step, to consider two elements that should remain distinct: on the one hand, the facts that integrate the anti-competitive legal cases and, on the other, the technical-economic assumptions of the administrative provision (such as the identification of the “relevant marketµ), for which an “appreciationµ is likely to be required. It is therefore necessary to attest the effects of this distinction on the judicial level, always taking into account the need to guarantee justice: therefore, a non-epidermal and substantial analysis, based on precise and defined criteria, appears indispensable.

Esercizi di discrezionalità tecnica e di controllo giudiziale in materia antitrust / De Nitto, Silvia. - In: DIRITTO PUBBLICO. - ISSN 1721-8985. - 1(2020), pp. 181-256. [10.1438/96681]

Esercizi di discrezionalità tecnica e di controllo giudiziale in materia antitrust

de Nitto Silvia
2020

Abstract

The article reviews the administrative judicial decisions in antitrust matters, with the aim of going beyond the judicial review as “declaredµ or “definedµ and checking whether the notion of so-called technical discretion – assuming it can still be considered useful – justifies a different type of judicial review; or if, on the contrary, it poses a “fake problemµ, thus questioning its autonomy from the notion of administrative discretion. In particular, regarding the activity of the Antitrust Authority, the problem is linked to the fact that it has developed action modules through which, in addition to the function of repression of competitive abuses, it tries to encourage the development of competition by acting dynamically on the market (for example, with decisions negotiated through commitments or even through advocacy functions). It seems helpful, in order to verify the effective and concrete judicial review, to first distinguish the “typeµ of power exercised by the authority; and, in a second step, to consider two elements that should remain distinct: on the one hand, the facts that integrate the anti-competitive legal cases and, on the other, the technical-economic assumptions of the administrative provision (such as the identification of the “relevant marketµ), for which an “appreciationµ is likely to be required. It is therefore necessary to attest the effects of this distinction on the judicial level, always taking into account the need to guarantee justice: therefore, a non-epidermal and substantial analysis, based on precise and defined criteria, appears indispensable.
Antitrust, Technical Discretion, Judicial Review, Justice, Non-epidermal Analysis, Technical-economic Assumptions
Esercizi di discrezionalità tecnica e di controllo giudiziale in materia antitrust / De Nitto, Silvia. - In: DIRITTO PUBBLICO. - ISSN 1721-8985. - 1(2020), pp. 181-256. [10.1438/96681]
File in questo prodotto:
File Dimensione Formato  
Esercizi di discrezionalità tecnica.pdf

Solo gestori archivio

Tipologia: Versione dell'editore
Licenza: Tutti i diritti riservati
Dimensione 495.76 kB
Formato Adobe PDF
495.76 kB Adobe PDF   Visualizza/Apri
Pubblicazioni consigliate

Caricamento pubblicazioni consigliate

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11385/220688
Citazioni
  • Scopus 0
  • ???jsp.display-item.citation.isi??? ND
social impact