Federico Ghezzi

The Two-Tier Model and the One-Tier Model of Corporate Governance in the Italian Reform of Corporate Law

Abstract This article explores the Italian reform of corporate law of 2003, which, for the first time, allowed corporations to choose among three different models of corporate governance. In addition to the traditional model, which has been significantly modernized by the reform, two other “alternative” systems of governance were introduced: the two-tier system, which owes its basic structure to the German tradition, and the one-tier system which derives from the Anglo-American tradition. Taking into account the initial goals of the Italian legislature in designing the reform, we describe how the alternative board structures have been implemented in Italian practice, and provide an overview of the initial predictions about their advantages and disadvantages. We argue that Italy has taken an innovative approach to corporate governance that may be useful for other European countries interested in granting corporations the power to choose between board structures. However, analyzing some empirical evidence on the first effects of the reform, we also recognize that, even if courageous, the reform so far was not particularly successful in attracting corporations to the new models.

The Italian Guidelines on the Method of Setting Fines. A (Half) Step Towards Transparency and Deterrence

In this paper, we examine the new Italian Guidelines on the method of setting fines for antitrust law infringements in the broader context of Italian antitrust public enforcement. The analysis of the new Guidelines is interesting for at least three reasons. Firstly, in drafting the new guidelines the Italian Competition Authority (ICA) adopted a comprehensive approach, taking into account that the method of setting fines may affect all the other elements of the sanctioning system. Thus, even if the Guidelines deal specifically only with the quantifications of fines, many elements of the new methodology have been designed to affect other important areas of the antitrust enforcement, particularly the leniency programs. Secondly, the new Guidelines clearly witness a shift towards an antitrust enforcement system based on deterrence. Unfortunately, the ICA’s very formal interpretation of the notion of undertaking undermines, if not completely annuls, the efforts towards heavier fines on naked cartels and exclusionary abuses of dominant position. Finally, in choosing the quantification method, the ICA largely followed the 2006 EU Guidelines on the method of setting fines. This should not come as a shock considering that Italian antitrust law closely mirrors Articles 101 and 102 TFEU. It should be pointed out, however, that the ICA resisted to the pleas of many commentators, urging it to follow other more lenient or in any case different national models. We think that, also in light of the allocation principles laid down in the Notice on the cooperation within the network of European Competition Authorities, a high degree of harmonization between the EU and the Italian antitrust sanctioning systems is beneficial to assure a level playing field for companies operating in the Italian markets.