Il Sindacato del Giudice Amministrativo nei confronti dei provvedimenti dell'Autorità Garante della Concorrenza e del mercato

After drawing relatively brief remarks to some general aspects concerning the competition, the private economic initiative and the importance of these concepts within the market, the survey object of this work has focused on the development of judicial review in the antitrust matters. The division of jurisdiction is dealt in the Article 33, comma 1 and 2 of the Law n.287/1990. In Italy, even before the Antitrust Law of 1990 and its establishment of the AGCM, was in force a system that was based on the provisions of the Civil Code (primarily in the Book V Title X entitled "the discipline of competition and consortia", articles 2595 - 2620 Civil Code). According to this ancient model in the past it was resorted to the ordinary courts on the basis of allotment of the courts ruled in Articles 102 and 103 of the Constitution. Also deduced from the nature of the legal situations of individual right that arose from such legislation. Before the 1990s, therefore, the lesions on competition could come about only through legal situations of individual rights. In light of this brief exposition concerning jurisdiction of the ordinary courts, we understand how the law n. 287 of 1990 had an impact on the protection of competition and on the market, not only in terms of distribution of powers, but also with regard to subjective legal situations involved. In fact, currently if the Authority which is charged with the protection in this area is an administrative authority, this means that for develop that protection its evaluation should result in an administrative measure. Against this decision is competent the administrative courts and the legal situation for protection, against a possible injury suffered by that measure, falls into the category of a legitimate interest. Below, we will examine the judicial orders to which is entrusted the new division of jurisdiction for disputes pertaining to the subject matter of this work. At first, according to a part of the doctrine, it could share the knowledge between the ordinary courts and the administrative courts taking as a criterion of reference the type of subjective legal injured situations. Indeed, as stated in the art. 33 of the Law 287/90 is assigned to the administrative judge (namely the Lazio TAR at first instance and the Consiglio di Stato in the appeal) an exclusive jurisdiction (only) on appeals against the actions taken by the Competition Authority (art. 33, paragraph 1) , as also supported by the administrative law over the years. It should be noted, therefore, as with this legal provision has not been given exclusive jurisdiction to the administrative judge for the entire antitrust matter, in fact, as regards the nullity actions and the disputes between private parties which relate to claims for damages or contractual cognition is entrusted to the ordinary courts, namely the Court of Appeals with territorial jurisdiction (art. 33, paragraph 2 of the Law 287/90). The Antitrust Authority exercises a circumscribed power based on undetermined legal situations and on technical standards, these rules provide the abstract cases that need to be punished. The Authority in the exercise of its powers performs the complex technical evaluations, case by case, aimed at understanding whether the situations that occur in the factual reality of the relevant market are or are not coming under competitive practices. This control must be examined by the administrative judge, who through an appealing judgment shall verify, through an ex post evaluation, the work of the Authority.