LA RESPONSABILITÀ EXTRACONTRATTUALE DELL'UNIONE EUROPEA PER LE DECISIONI DELLA COMMISSIONE IN MATERIA DI CONCORRENZA

The European Commission is an institution charged with a multitude of tasks. Amongst these, it is the authority entrusted with the enforcement of competitions provisions at EU level, a function that is at the heart of the European phenomenon. Competition rules, in fact, not only are intended to protect the process of fair competition, but, by trying to create a “levelled playing field” for EU companies, they have played a fundamental role in the achievement of the single market. When performing this duty the Commission’s actions are capable of having a strong influence on companies’ activities and, if unlawful, to cause substantial damage. Industrial strategies might be affected irreparably if an envisaged merger is unlawfully prohibited. In fact, pending the appeal against the decision prohibiting it, market conditions might irreversibly change. The exclusive nature of confidential know-how might be lost if a company is unlawfully compelled to disclose it. A company might go bankrupt if it does not have the resources to pay a fine for a competition infringement that it has not committed. The extent to which such damages can be claimed before the European Courts has been the object of recent (and less recent) cases. These cases involved not only the question of the eventual liability for the Commission’s decisions in merger cases, but also for its decisions finding – and fining – antitrust infringements. Some of those claims were based on the illegality committed in the conduction of the procedure. Other actions were grounded on the errors committed by the Commission when assessing the lawfulness of the company’s conduct or in the assessment of the compatibility with the internal market of the envisaged merger. In one case, it was the Commissions lack of action which was identified as the cause of the alleged damages. To better understand the general background to these cases the first chapter considers the possibility of claiming damages under European law. In fact, in the absence of an ad hoc action, all the cases described above were based on the general provision of the Treaties, namely art. 340 TFEU. In chapter two it is provided a description of Commission’s powers in the antitrust field (with special attention for the question of the adequacy of the enforcement procedure) as well as a description of the judicial remedies offered by the treaty to the addressees of a Commission’s decision in such field (with a special attention for the action for annulment). Finally, chapter three examines the main cases in which such a liability has been invoked, focusing on the question whether it is possible to claim damages against the Commission in competition cases or whether such an option has de facto been completely excluded by the European Courts.