La legge italiana sulla concorrenza nell’ottica svizzera
Authors: Baldi Marino 
Published: December 2019

In general the Swiss cartel law, which is based on the principle of abuse, is considered quite mild.

The Italian law, instead, follows the model of the European Community legislation, as do the French and the Spanish laws, which have been revised recently.

A comparison between the Swiss and the Italian laws, in spite of the basic differences inspiring their philosophies, may be nonetheless useful, especially if one considers that usually regulations about cartels leave large discretionary powers to the authorities responsible for their implementation.

The first Swiss law regulating cartels, which was introduced in 1962, had two main weaknesses: its scope was quite restrict, because it could only apply to horizontal cartels, and competition criteria for the evaluation of market agreements had a minor role. The decisive criterion was derived by an «economic and social budget», by which it was possible to justify whatever limitations to competition on the basis of any possible advantage for any social group.

A new and more noteworthy law was introduced in Switzerland in 1985. Though it is also based on the abuse principle, so that behaviour of whatever kind is not prohibited, its scope of application is much larger. In addition to horizontal, the new law deals also with vertical aggreements, with abuse of a dominant position and also with mergers which, however, are a field where possibilities to intervene are very limited.

The second and important aspect of the new law refers to the criteria for evaluating whether a specific agreement on competition can be judged positively or not. Though the dominant criterion still refers to the «economic and social consequences», the law also assumes that competition is the best protection for the general welfare. This new criterion was the basis for important decisions dealing with competition, and especially for the elimination of cartels in such sectors as banks and insurance companies.

In spite of the more serious attitude toward competition taken by the Swiss legislation, the political climate about competition in Switzerland is still quiet.

On a subject as competition policy, which always implies some discretionary margins, it is always necessary to distinguish between the legal rules as such and the outcomes of their implementation. The Swiss competition law, for istance, is a good example of a law which could allow a serious competition policy. However, the Swiss competition policy is not so severe as it could be, for the simple reason that the responsible authorities have a too limited staff, due to the fact that, during the Seventies, the Swiss Parliament decided to stop hiring federal employees. Consequently, now the officials working for the implementation of the Swiss competition policy are seven, exactly as they were in the Sixties, when the legislation on competition was very mild.

Shortage of staff arises particular difficulties for a competition system which, as that of the Swiss law, is based on the principle of abuse. This is true in particular for horizontal cartels, not prohibited per se in Switzerland, which requires careful investigations.

However, apart from this case of «classic» cartels, the distinction between systems based on prohibition and systems based on abuse should not be too emphasized. Indeed, the other cases of restrictive practices, with few exceptions, are subject to evaluations which do not depart too much from the principle of abuse or, as the Americans call it, the «rule of reason».

This is true for the vertical agreements as well as for the abuse of a dominant position.

The experience with the Swiss legislation shows that a competition law based on abuse can be the basis for a serious policy, also with regard to horizontal cartels (as it was demonstrated by the elimination of the bank and insurance cartels).

However, systems based on abuse require more resources and more time than those based on prohibition, whose application does not normally require to prove that certain kinds of behavior are harmful.

A correction toward a more efficient system derives from the European Community legislation, which for Switzerland is more important than national legislation. A great part of the restrictive agreements by the Swiss undertakings has been under the evaluation of the EEC authorities.

As far as the Italian law is concerned, it appears that it can neither be considered as entirely «prohibitive», nor as based on abuse only. On a first impression the Italian law follows the prohibition approach, at least for horizontal and vertical cartels, which are banned by art. 2. But the exemptions listed in art. 4 open the way to a large number of cases to be judged one by one, through investigations that may not always be very simple.

A more important aspect is that the law does not explain whether the exemptions provided in art. 4 must be considered as legal exceptions or whether their application requires the previous approval by some bodies. The second interpretation would support the prohibition approach, whilst the first would favour the abuse approach.

Article 85 of the EEC Treaty arose the same difficulties, solved by regulation 17/62, introducing a duty of notification for restrictive agreements, and establishing the rule that cases not explicitly exempted from the general ban would be prohibited following art. 85, paragraph 3. According to the Italian law, however, notifications are voluntary. The future regulations for the implementation of the Italian law might, hopefully, clarify this very important issue.