La forza espansiva della matrice. Intese restrittive della concorrenza e strumento penale nella politica criminale contemporanea

This Article focuses on the desirability and feasibility of using the criminal law in the context of antitrust law. Although the Italian legal system does not provide at present for specific offenses punishing hardcore cartels fixing prices and dividing markets, the subject is worth particular attention in light of the relentlessly expanding process of criminalization of anti-competitive agreements across multiple jurisdictions worldwide. After some general remarks on the relationship between the regulation of markets and the criminal law, the Article outlines the many deficiencies of the outdated and ineffective provisions of the Italian criminal law (with the only partial exception of the anti-bid rigging provision of the Criminal Code) regarding the protection of the competitive structure of the market. The attention then turns to the genesis and evolution in the interpretation and enforcement of Section 1 of the U.S. Sherman Antitrust Act of 1890 – the first modern example of criminalization of cartel conducts as well as paradigmatic model for penal provisions recently passed by many foreign legislatures. The American model of criminalization and enforcement of the most harmful conspiracies in restraint of trade combines harsh penalties with leniency programs for corporations as well as individuals, and is specifically and cleverly designed to increase the likelihood of detection and punishment of such illegal secret schemes. From a de lege ferenda perspective, the U.S. model gives relevant hints on how to properly confront and tackle the quintessential form of Economic Organized Crime represented by the antitrust offenses.