Anna Maria Chiariello, La discrezionalità dell’Antitrust nell’irrogazione delle sanzioni e la tutela del legittimo affidamento


1. La fattispecie. 

2. Natura delle Linee Guida e il vincolo alla discrezionalità dell’Antitrust. 

3. I poteri sanzionatori dell’Agcm e la sua “politica” della concorrenza. 

4. Certezza del diritto e legittimo affidamento: un difficile bilanciamento con l’attuazione della “politica” della concorrenza e il potere discrezionale dell’Antitrust.

5. Conclusioni.


The decision n. 740/2017 of the Council of State, confirming previous case law the prevalent orientation expressed by the jurisprudence, rules in favour of recognizes that the fact that the Italian Competition Authority (ICA) by recognizing its discretion in has previously imposed pecuniary administrative penalties of a certain level for various types of infringements does not deprive it of the possibility of setting the amount of a fineraising this level, within the limits set out by the applicable Law in (Article 15, Law No. 287/1990). In the judgement, the Court stated that even though ICA had previously imposed lower pecuniary administrative penalties for various types of infringements, a higher amount of penalty is legitimate, if this is necessary to guarantee the implementation of the European Union’s competition policy. On the contrary, the effective application of the EU competition rules requires the ICA to at any time adjust at any time the level of pecuniary administrative penalties to the requirements of this policy. In particular, this applies not only when the Authority increases the level of fines in individual decisions, but also when this increase is made by applying, in concrete cases, general rules of conduct of general scope, such as the Guidelines. The aim of this note is to put comment is to place theis judgement statute in the context frame of the delicate balance between the ICA’s discretionary power in the imposition of sanctions and the legitimate expectations of companies. In this light, the ICA’s sanctioning powers will be the object of particular attention in explicating its competition “policy” and their reflection on legal certainty.