PIL scholars have tried to tackle the problem of recognition of foreign “administrative” acts through which foreign public authorities exercise their discretionary powers. In this respect, it seems accepted that no general rule of public international law can be detected within the international practice. In PIL, two kinds of “recognition” may be envisaged: “indirect recognition”, when the foreign act is relevant only as a part of the rules to be applied to the specific case, and “direct recognition”, when the foreign act is considered in se. In the EU, recognition may be achieved also through the “mutual recognition principle”, which does not operate like a conflict rule, but rather as an exception to the application of the law applicable to the content of the case. Studies in this field traditionally focused on confiscations and expropriations. The interconnection between markets has recently increased the interest in the competition sector. A Commission’s decision ex Art(s) 101-102 TFEU binds internal judges, pursuant to Art. 16(1) Reg. 1/2003. Frequently, however, it only ascertains the “existence” of an antitrust violation, whereas the evaluation of its related effects remains to national courts. Several PIL issues may be discussed in this respect: for example, which court is competent in presence of numerous tort-feasors or victims, or where the tort triggers effects in various countries? Which law is applicable? Thus, the interactions between Brussels I, Rome I and Rome II Regulations need to be explored. For example, in 2009, the Milan Court declared that it were competent, pursuant to Art. 6(1) Brussels I, to hear a claim, brought against various defendants, aimed at declaring that an anti-competitive agreement ex Art. 81(1) TEC and related damages did not exist. Such action was however inadmissible, pursuant to Art. 16(1) Reg. 1/2003, if founded on a different interpretation of same facts considered in a previous Commission’s decision. It was neither possible to lodge claims for said (non) damaging events, which occurred in different MS, before a single court, either pursuant to Art(s) 5(3) or 6(1) Reg. 44/2001. Moreover, an action related to the same cartel has raised interesting PIL issues (lis pendens and connection, in primis) in the UK. But Art. 16(1) Reg. 1/2003 cannot be applied for acts issued by a foreign authority. Which effect an Italian court should therefore attribute to an English act declaring that an agreement between an Italian and an English company is not compliant with its antitrust regulations? The Italian company may be interested in obtaining a declaration of voidance of the contract or a group of consumers may claim the related damages. In 2008, through the White Paper on Damages Actions for Breach of EC antitrust rules, the Commission proposed that even final decisions ex Art(s) 101-102 TFEU issued by MS’s competition authorities should be binding for other MS’s courts. Notwithstanding, the White Paper remained unsuccessful. The EU Commission is now expected to introduce a new draft Directive. Which aspects of recognition and enforcement of foreign competition acts should thus be dealt with?

Serrano', G. (2013). Private enforcement of administrative acts adopted by a foreign competition authority: a PIL perspective. Intervento presentato a: Journal of Private International Law Conference, Madrid.

Private enforcement of administrative acts adopted by a foreign competition authority: a PIL perspective

SERRANO', GIUSEPPE
2013

Abstract

PIL scholars have tried to tackle the problem of recognition of foreign “administrative” acts through which foreign public authorities exercise their discretionary powers. In this respect, it seems accepted that no general rule of public international law can be detected within the international practice. In PIL, two kinds of “recognition” may be envisaged: “indirect recognition”, when the foreign act is relevant only as a part of the rules to be applied to the specific case, and “direct recognition”, when the foreign act is considered in se. In the EU, recognition may be achieved also through the “mutual recognition principle”, which does not operate like a conflict rule, but rather as an exception to the application of the law applicable to the content of the case. Studies in this field traditionally focused on confiscations and expropriations. The interconnection between markets has recently increased the interest in the competition sector. A Commission’s decision ex Art(s) 101-102 TFEU binds internal judges, pursuant to Art. 16(1) Reg. 1/2003. Frequently, however, it only ascertains the “existence” of an antitrust violation, whereas the evaluation of its related effects remains to national courts. Several PIL issues may be discussed in this respect: for example, which court is competent in presence of numerous tort-feasors or victims, or where the tort triggers effects in various countries? Which law is applicable? Thus, the interactions between Brussels I, Rome I and Rome II Regulations need to be explored. For example, in 2009, the Milan Court declared that it were competent, pursuant to Art. 6(1) Brussels I, to hear a claim, brought against various defendants, aimed at declaring that an anti-competitive agreement ex Art. 81(1) TEC and related damages did not exist. Such action was however inadmissible, pursuant to Art. 16(1) Reg. 1/2003, if founded on a different interpretation of same facts considered in a previous Commission’s decision. It was neither possible to lodge claims for said (non) damaging events, which occurred in different MS, before a single court, either pursuant to Art(s) 5(3) or 6(1) Reg. 44/2001. Moreover, an action related to the same cartel has raised interesting PIL issues (lis pendens and connection, in primis) in the UK. But Art. 16(1) Reg. 1/2003 cannot be applied for acts issued by a foreign authority. Which effect an Italian court should therefore attribute to an English act declaring that an agreement between an Italian and an English company is not compliant with its antitrust regulations? The Italian company may be interested in obtaining a declaration of voidance of the contract or a group of consumers may claim the related damages. In 2008, through the White Paper on Damages Actions for Breach of EC antitrust rules, the Commission proposed that even final decisions ex Art(s) 101-102 TFEU issued by MS’s competition authorities should be binding for other MS’s courts. Notwithstanding, the White Paper remained unsuccessful. The EU Commission is now expected to introduce a new draft Directive. Which aspects of recognition and enforcement of foreign competition acts should thus be dealt with?
abstract + slide
Competition, recognition, administrative, act, damages, private international law
English
Journal of Private International Law Conference
2013
2013
none
Serrano', G. (2013). Private enforcement of administrative acts adopted by a foreign competition authority: a PIL perspective. Intervento presentato a: Journal of Private International Law Conference, Madrid.
File in questo prodotto:
Non ci sono file associati a questo prodotto.

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/10281/47077
Citazioni
  • Scopus ND
  • ???jsp.display-item.citation.isi??? ND
Social impact