Decisioni con impegni e private enforcement

Commitment decisions are an increasingly central tool in the arsenal of antitrust public enforcement, enabling the swift achievement of a result of optimal market functioning. On the other hand, by determining a closing of the administrative procedure without a finding of infringement, but only with the imprimatur of binding commitments that the companies involved propose to undertake, such decisions imply a deviation from the trajectory of complementarity between public and private instruments of competition law enforcement: the mobilisation of civil law techniques, especially the remedial one, becomes unrealistic, due to information asymmetries and related difficulties of proof that remain unrelieved. However, as the use of commitment decisions moves further and further away from the threshold of the minimum seriousness of the alleged infringements, the acceptability of this state of things becomes less and less acceptable; in this perspective one has to look at some important interventions of the Court of Justice, aimed at giving prominence, also in the courts, to commitment decisions and preliminary decisions. Having briefly reconstructed this general framework and retraced the arguments followed by the European Courts with the three leading cases Alrosa, Gasorba and Groupe Canal+, the author critically reviews the various interpretative options practised by domestic jurisprudence regarding the relevance of commitment decisions in civil proceedings, proposing that the theory of jurisprudential presumptions be applied.