La direttiva (UE) 1/2019: l’evoluzione del public enforcement del diritto europeo della concorrenza

This article aims to illustrate the evolution of the EU public antitrust enforcement after Directive (EU) 2019/1 to empower the national competition authorities to be more effective enforcers (also called ECN+) and focuses of some critical aspects related to the Italian legal system. In the first part it illustrates the preparatory work and the framework of the Directive. The purpose of the new law is to ensure that when applying the same legal basis – the EU antitrust rules – national competition authorities (NCAs) have the appropriate enforcement tools in order to bring about a genuine common competition enforcement area. To that end, the directive provides for minimum guarantees and standards to empower NCAs to reach their full potential. The second part of the research focuses on the provision concerning independence, priorization and resources contained in Chapter III of the directive. The research sets out an analysis on the issue of prioritization by national authorities highlightening the specific risk of a selective protection of the interests of the parties. According to the new rules, the NCAs have the power to set positive priorities (in that they can initiate investigations and proceedings) and negative priorities (they can reject complaints on the ground that are not a priority). Referring to the latter, the article questions about the hypothetical contrast between the EU priorities and the national priorities set out in the national constitutions. In order to guarantee the judicial review of decision rejecting complaints, a Commission-style system should be applied.