ANTITRUST LAWS BETWEEN PUBLIC AND PRIVATE LAW

Abstract

The arguments illustrated above show, first of all, that Antitrust law needs private law rules in order to express itself to its greatest potential. They also show that Private Antitrust Enforcement has to use public law in order to more effectively enforce private law and the protection of private rights. Thus, Antitrust Law promotes public/private conjunction to increase its effectiveness and to more incisively achieve its objectives. On the one hand there are private remedies (damages) that are used to enhance the effects of antitrust policy; on the other, there is an Antitrust Authority that intervenes in an individual relationship in order to determine whether that relationship gives rise to unfair or contrary-to-good faith conduct, or if the contractual balance is compromised, and to, then, correct the asymmetry between the parties. Due to the complexity of the issues and their intertwining with countless and constantly changing rules, practices, needs and requirements, it is not easy to identify the cause of this phenomenon of "repositioning” of the rules of public/private law in the modern legal system. In my view, we can venture a reply by stating that the strong socio-political change experienced in recent decades, from World War II onwards, is at the origin of the described phenomenon. A change that, moreover, has affected the position of the individual, of each person with respect to the public power, the institutions, politics, the economy and society in general. In other words, the individual is becoming increasingly less of a subject and more of a citizen, increasingly driven to participate in the complex mechanism by which power is exercised, aware that his destiny as a person, citizen, consumer, investor, in short, his economic fate, is closely linked not only to the production of rules by its political representatives but also to the proper functioning of such rules. A well-known Supreme Court ruling confirms this new awareness and emblematically sums up the sense of change. I am referring to the Court of Cassation judgment no. 2207 of 4 February 2005,which states that "Antitrust Law 287/90 is not just a law for enterprises, it is the law of market players, i.e. for anyone who has such an interest in preserving its competitive nature that they can allege a specific damage as a result of a breach or reduction of such competitive nature. „In this evolutionary process, Community law has definitely played the main role. Suffice it to say that the rules aimed at creating a single market and, therefore, primarily, the competition rules as well as the ensuing rules on the free movement of goods, persons, services and capital, as systematically formulated in the Treaty and as interpreted by the Court of Justice, are addressed not only to the States nor only to individuals, but to them jointly. As a result, European jurists got used to the idea that a rule can be applied as much "vertically" as "horizontally", as much as an organizational/ruling provision as a provision that regulates individual relationships. Hence, rules that, just as market safeguard rules, inherently overcome the distinction between public and private spheres. In essence, Antitrust law teaches us that the notions of State and market, authority, and autonomy, public and private are not necessarily in opposition but they complement each other and can interact to achieve shared purposes. In this sense, it is increasingly difficult to pinpoint a clear-cut boundary between public law and private law in the antitrust area, assuming such area still exists.