Aggiornamento del toolkit antitrust e nuovi orizzonti della concorrenza-mezzo

The essay examines the update to the Italian antitrust toolkit introduced by Article 1 of the “Asset Decree” (Decree-Law 104/2023), analyzing its origins in the “high airfares” controversy and the challenges posed by algorithmic tacit collusion in digital markets. The author develops a rigorous critique of the “Italian way” to wards the New Competition Tool (NCT), first denouncing a methodological flaw: the extension of the rule’s scope from sectoral to general, enacted through an “in terpretative creation” by the Council of State, which is described as a “manipula tive operation” that overrides legislative intent and undermines legal certainty. Regarding the merits, the paper highlights the vagueness of the grounds for inter vention and the lack of clear parameters for the AGCM’s discretionary powers, is sues which prompted the Lazio Regional Administrative Court to raise a question of constitutional legitimacy under Articles 3 and 97 of the italian Constitution.Beyond these criticisms, the contribution offers a constructive perspective by fram ing the new tool within the evolving concept of “competition-as-a-means”. Anti trust is reinterpreted as a proactive lever, no longer confined to economic efficien cy alone but open to integrating non-economic objectives such as environmental sustainability, privacy protection, and pluralism. In this view, the author suggests a “new balance” that incorporates the findings of the Draghi Report to reconcile consumer welfare with global competitiveness and the strategic autonomy of the European Union. The essay concludes by advocating for rigorous balancing crite ria—inspired by the British and German models—to prevent competition authori ties from falling into the “regulator’s trap,” ensuring that new powers remain bound by the principles of necessity, proportionality, and subsidiarity