Lack of defence of the undertakings involved in antitrust follow on action and compliance with the Italian constitutional principles

The article analyses an Italian Supreme Court decision, which stated that a cartel casedecision of the Italian antitrust authority («Iaa») could limit the evaluations of a Judgein charge in the follow on private enforcement case related to the cartel already ascertainedby the Iaa. This Supreme court decision is coherent with the needs of theEu Commission to increase the private enforcement cases within the Eu. The authorwhile considers positive any mechanism which facilitates the burden of proof of anyclaimant in the antitrust private enforcement cases, fears, that the principle stated bythe Supreme Court, may de facto confers the a role of judge to the Iaa (which is anindependent agency but not a Judge, under Italian law). Thus, the Supreme court decisioncould give rise to concerns of compliance with the Italian constitutional principle,which state that no one may be withheld from the jurisdiction of the judge previouslyascertained by law.