Abuse of economic dependence. Does the new Italian Regulation va trop loin?, l’abstract dell’intervento della Prof.ssa Valeria Falce alla Conferenza Ascola 2014

Di seguito l’abstract dell’intervento con il quale la Prof.ssa Valeria Falce dell’Università Europea di Roma ha partecipato alla nona Conferenza Ascola dal titolo “Procedural fairness in competition proceedings”, che ha avuto luogo a Varsavia dal 26 al 28 giugno scorsi The Italian regulation against Abuse of economic dependence has been recently strengthened (Law no. 108/2011) with the view to combat late payment in commercial transactions. In particular, in line with Directive 2011/7/EU effective actions and remedies have been made available within business-to-business relations any time a consistent late payment issue arises. According to the law, in fact, conducts infringing late payment regulation amount to Abuse of Superior Bargaining Position any time the violation is reiterated. The competence to apply the new regulation is attributed to the Italian Competition Authority (“ICA”) that, as such, is entitled to investigate such form of intra partes abuses, applying traditional antitrust remedies and sanctions. Both the an and the quomodo of the novella are welcome. The regulation is part of a broader post-crisis package, aimed at recovering first and then boosting the Italian economy. Within such framework, the legislator urged the introduction of measures supporting captive medium sized and small enterprises vis-a-vis large corporations. With regard to the appointment of the ICA as the competent body, such choice is coherent with the mission of the ICA itself that on one hand promotes competition and on the other hand safeguards the economic interests of consumers and unpaired contractual parties. Besides, the attribution of the competence to the ICA reflects the decision of the Legislator to support victims with rapid, effective and efficient legal aid instruments. Despite the good intentions, the assumption (generalized late payment equal to abuse) on which the regulation is built risks jeopardizing first the general antitrust architecture and second the underlying spirit of the reform aimed at reinforcing fairness in contractual relations. To overcome such possible side effects in the paper a sound interpretation of the new regulation is suggested with the view to reconcile the novella with the legitimate objective pursued by Legislator. 30 giugno 2014