Peripezie passate e presenti della tutela della concorrenza = Past and present perils of competition protection

Antitrust is undergoing profound transformations, which cannot be easily recon- structed because they are marked by ambiguities. If the distinguishing features of the twentieth-century paradigm of competition protection are compactness and line- arity, the qualifying features of the current paradigm are instead overlapping and fragmentation: overlapping between competition protection, regulation and industrial policy; overlapping between different antitrust regulations; overlapping between the competences of different independent Authorities; fragmentation between markets, no longer treated in a uniform way; fragmentation between different States within the European Union. The Digital Markets Act brings with it a new European para- digm of competition protection regulation applicable to digital markets, different and complementary to the traditional one. It risks bringing antitrust into a regulatory or even redistributive sphere but still satisfies the need to confront the new sophisticat- ed and chameleon-like private powers with an equally sophisticated and chameleon- like legal instrumentarium. Further overlaps between competition protection and regulation are determined by the recent introduction of the so-called New Competi- tion Tool in our legal system, which has endowed the AGCM with a general regula- tory power of a corrective nature, the boundaries of which seem uncertain. Finally, the Draghi Report suggests that in order to revive productivity, competition, which is considered partly responsible for Europe’s loss of competitiveness, should be re- newed. It outlines a not complementary, but antagonistic conception between anti- trust and industrial policy, implying an antithesis between competition and competi- tiveness. But the subjugation of antitrust to industrial policy objectives risks having an increasingly fragmented, segmented and sectorialised European market, with Member States legitimised to act in no particular order.

L’antitrust sta affrontando profonde trasformazioni, non agevolmente ricostruibili perché attraversate da ambiguità. Se le cifre distintive del paradigma novecentesco di tutela della concorrenza sono compattezza e linearità, i tratti qualificanti dell’attuale paradigma sono invece sovrapposizione e frammentazione: sovrapposi- zione tra tutela della concorrenza, regolazione e politica industriale; sovrapposizione tra distinte normative antitrust; sovrapposizione tra competenze di diverse Autorità indipendenti; frammentazione tra mercati, non più trattati in maniera uniforme; frammentazione tra i differenti Stati all’interno dell’Unione europea.