The Interplay between Regulation and Competition Law Enforcement: The «28-Day Billing» Case in the Telecom Sector

This paper illustrates how competition principle was gradually introduced into Italian national legal order, building an external constraint to anti-competitive public intervention, which the Competition Authority has been progressively empowered to enforce. At the same time, in some sectors, such as the electronic communications, the competition principle has been «internalised», by setting competition promotion as a primary objective of the public (regulatory) intervention. In those sectors, Competition Authority has kept its competences, yet started to play a different role vis-à-vis other public enforcers. The coexistence of pro-competitive regulation and competition law enforcement implies a duty to use powers and perform functions in a complementary fashion, in order to jointly pursue competitive and well-functioning market outcomes. Each Authority must share relevant information and take other’s authority’s opinions in utmost consideration. A clear misalignment of their opinions, as happened in the «28-day billing» case-study, may be symptomatic of a non-complementary exercise of functions. This implies risks and costs for the market, as well as it signals a bad use of discretionary powers. Indeed, the administrative tribunal has annulled the Italian antitrust decision, mainly because the clear misalignment with the telecom regulator’s opinion about the functioning of the market it oversees. Based on this case study, the paper describes the occasional inadequacy of existing coordination mechanisms, and proposes a new solution. In the event of disagreement between the Authorities, the Antitrust Authority could ask for the European Commission’s opinion, and thus exploiting its (asymmetrical) apical enforcement position in both regulatory and competition law systems.