Abstract
The present paper is an analysis of the Antitrust law in Italy, and its relation with the conflict of interest. In this paper I have given a general introduction to the development of the Antitrust Law in the United States, and consequently in Europe and finally in Italy, and how it regulates the conflict of interest. It is mainly divided in three parts.
The first part is an introduction, I have given a definition of what is a Trust, according to the Common Law, then I have explained how the corporate trusts were formed in America, and how and why the Antitrust Legislation was born, and how it has evolved. Therefore, I have discussed about the influence of the American Antitrust Law on the on the European Legislation covering this matter.
In the second part, I have discussed about the Italian Antitrust Law, the monopoly of state and task of the Italian Competion Authority.
In the third part, I have explained what is a conflict of interest and how the Italian Antitrust Law try to regulate it ( Frattini Law). At the conclusion I have mentioned some cases of conflict of interest in Italy, such as the one of the former Prime Minister Silvio Berlusconi, and how the former has not yet been solved.

Keywords
Trust, Antitrust Law Competition Authority Conflict of interest Frattini law

Introduction

Overview on the Antitrust Law in America and Europe

The trust，definition

Originally, a trust, in the Common law, is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers property to a trustee. The trustee holds that property for the trust's beneficiaries. Similar systems existed since Roman times.

An owner of property that places property into trust turns over part of his or her bundle of rights to the trustee, separating the property's legal ownership and control from its equitable ownership and benefits. This may be done for tax avoidance reasons or to control the property and its benefits if the settlor is absent, incapacitated, or dead. Trusts are frequently created in wills, defining how money and property will be handled for children or other beneficiaries.

The trustee is given legal title to the trust property, but is obligated to act for the good of the beneficiaries. The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties. Trustees who violate this fiduciary duty are self-dealing. Courts can reverse self dealing actions, order profits returned, and impose other sanctions.

The trustee may be either a individual, a company, or a public body. There may be a single trustee or multiple co-trustees. The trust is governed by the terms under which it was created. In most jurisdictions, this requires a contractual trust agreement or deed.
Property of any sort may be held in a trust. The uses of trusts are many and varied, for both personal and commercial reasons, and trusts may provide benefits in estate planning, asset protection, and taxes. Living trusts may be created during a person's life (through the drafting of a trust instrument) or after death in a will.In a relevant sense, a trust can be viewed as a generic form of a corporation where the settlors (investors) are also the beneficiaries.

The corporate Trust and the origin of the Antitrust Law in the United States

Originally, the corporate trust was a legal device used to consolidate power in large American corporate enterprises. In January 1882, Samuel C. T. Dodd, Standard Oil’s General Solicitor, conceived of the corporate trust to help John D. Rockefeller consolidate his control over the many acquisitions of Standard Oil, which was already the largest corporation in the world. The Standard Oil Trust was formed pursuant to a "trust agreement" in which the individual shareholders of many separate corporations agreed to convey their shares to the trust; it ended up entirely owning 14 corporations and also exercised majority control over 26 others.Nine individuals held trust certificates and acted as the trust's board of trustees. One of those trustees was Rockefeller himself, who held 41% of the trust certificates; the next most powerful trustee held only about 12%. This kind of arrangement became popular and soon had many imitators.

Although the "corporate trusts" were initially created to improve the organization of large businesses, they soon faced widespread accusations of abusing their market power to engage in anticompetitive business practices. This caused the term "trust" to become strongly associated with such practices among the American public and led to the enactment of the Sherman Antitrust Act in 1890, the first federal competition statute.

American Antitrust Law.

Sherman Act (1890)

Introduced by senator John Sherman to fight the trust, is the cornerstone of American antitrust law. The Law attempts to prevent the artificial raising of prices by restriction of trade or supply. "Innocent monopoly", or monopoly achieved solely by merit, is perfectly legal, but acts by a monopolist to artificially preserve that status, or nefarious dealings to create a monopoly, are not. The purpose of the Sherman Act is not to protect competitors from harm from legitimately successful businesses, nor to prevent businesses from gaining honest profits from consumers, but rather to preserve a competitive marketplace to protect consumers from abuses. Prohibition of collusion between firms at the expense of the public interest (e.g. pricing) prohibition of abuse of dominant position: predatory pricing, strategic barriers to entry, etc.

Clayton Act (1914)

The Clayton Act made both substantive and procedural modifications to Federal Antitrust Law. Substantively, the act seeks to capture anticompetitive practices in their incipiency by prohibiting particular types of conduct, not deemed in the best interest of a competitive market. There are 3 sections of the bill that proposed substantive changes in the Antitrust Laws by way of supplementing the Sherman Antitrust Act of 1890:
▪ prohibition of discrimination in the sale prices;
▪ prohibition of restrictive clauses to the sale (purchase of another product or obligation not to contact to a competitor);
▪ prohibited mergers and acquisitions designed to increase the profit (not to increase efficiency);
It is also founded in 1914, the Federal trade commission, competition authority: monitors markets and implementing antitrust law. federal trade commission act)

Robinson, Putnam act (1936)

In general, the Act prohibits sales that discriminate in price on the sale of goods to equally-situated distributors when the effect of such sales is to reduce competition. Price means net price and includes all compensation paid. The seller may not throw in additional goods or services.

Celler - Kefauver amendment (1950):

The law on mergers and acquisitions only concerned the purchase of shares, but the m & a can come to existence through purchase facilities and activities, not only through the exchange of shares.
The amendment extends the Antitrust Law to all kinds of m & a.
There are many other amendments, additions and deletions; the pillars of American antitrust are the four points above.

The Antitrust Law in Europe

The tradition of American Antitrust has had a profound influence on Europe. After the Second World War were enacted monopolistic laws in the major industrialized countries: in France, the system was reformed in 1986, in Germany and Britain in 1948, in Spain, in 1963. A significant development has emerged by the thought of the founding fathers of the European Community, for which an economic and social system which was based on a system of competitive market. So it was thanks to this, that in the treaty of Rome (1957) were covered the case of restrictive practices and abuse of a dominant position (art. 101 et seq. of the Treaty in the numbering current post Lisbon treaty) and, subsequently, by regulation no 4064 / 89 of the European Economic Community of 21 December 1989, on concentrations.

The provisions are aimed to prevente restricted or distorted competition within the common market. According to the article. 81 of the Treaty of Rome (now article 101 of the Treaty on the functioning of the European Union): “are incompatible with the common market and prohibits all agreements between undertakings, decisions of associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the market, and in particular those which consist in: a)directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) the sharing of markets and other sources of supply; (d) apply in trade relations with the other contractors, dissimilar conditions for performance equivalent) make the conclusion of contracts subject to acceptance by the other parties of supplementary benefits that have no connection with the subject of such contracts.

In accordance with article. 85 the authority responsible for monitoring compliance with the prohibitions contained in articles. 81 - 82 (now 101 and 102 tfeu) is the European Commission, and the Commissioner for Competition (from 1995 to 2004 in the office of the Italian Mario Monti); in most European countries, it finds its counterpart in independent authorities such as the competition authority in Italy, the Autorita’ Garante del Mercato, in Italian.

When finding the existence of an infringement, the authority controlling it shall propose appropriate measures to bring it to an end. If it is not brought to an end, the Commission shall decide if is an infringement of the principles in a reasoned decision; it may be published and the authorises of the member states will have to adopt the necessary measures, which lays down the conditions and procedures, to remedy to the situation.

This provision has three types of intervention:first, supervision and monitoring.
A second divided into a stage of initiative and investigation;the final decision in the case in which the prohibition is violated.
It is always the commission's task to define the conditions and the suitable ways to remedy the situation, still based on the measures taken by the member states.

The Antitrust Law and the Competition Autority in Italy

The antitrust law in Italy, the law no.287 of 10 October 1990, or Frattini Law

In Italy, the introduction of a National Antitrust Legislation was very late compared to other European states, and with respect to the other European communities. Only in 1990, it was approved the Law of 10 October 1990, no. 287 on the "rules for the protection of competition and the market." This delay was generally explained by the prevalence of factors, institutional, political, and cultural, that created an unfavourable attitude in our country toward the market, the individual economic initiative and competition, in defiance of the wishes of the legal doctrine , in particular that formulated by Tullio Ascarelli, and subsequently by others scholars, including Guido Rossi.
The Law introduces two basic forms of violation: the abuse of a dominant position and the agreement restricting competition. Antitrust violations in the United States have criminal relevance, while in European law are only punishable by fines. The law for the first time introduced the authority, which already had a long experience positive in the countries of Common Law of England and the United States.

The Italian and European Antitrust have the power to impose fines up to 10% of the business turnover for each year of the infringement, and thus have the appropriate sanctions. The Italian Parliament, with the introduction of standards for the protection of competition similar to the community wanted to emphasize the purpose of implementation of article. 41 of the Constitution to “protect and guarantee the right of economic initiative ", defining the competitive market as the framework within which is possible to practice the freedom of this initiative.

The antitrust law has the dual purpose of guaranteeing the rights of the citizen and consumer, and the competition of enterprises. The birth of a trust is associated with a more general danger to the democratic position on a subject of a citizen of one country. Think, for example, the power consumed in Nazi Germany by cartels in the electricity sector aeg, steel (Vereinigte Stahlwerke ag) and chemistry (Ig Farben). The member states may not have the power and the authority to legislate on power too strong, which arise in situations of monopoly.

Characteristic of the Italian Antitrust Law

This regulatory complex, also known as the Antitrust Law or the Competition Law, is a protection of the general competition, preventing enterprises, individually or jointly, to affect the regular economic competition by adopting pipelines that integrate agreements restricting competition, abuse of dominant positions and mergers likely to create or strengthen a monopoly position.

Secondly, by extension, it is called "Antitrust" the organ or authority which shall ensure the observance and respect of those rules, which in Italy is called the Competition Authority (Autorita’ Garante della Concorrenza e del Mercato or AGCM ). The main laws are the result of the proposition of modern liberalism, that has produced two effects: on the one hand, the removal of constraints on the economy arising from the state, on the other hand, the prohibition on companies abusing dominant positions to the detriment of the consumer.

The ultimate goal of the antitrust laws is to support a free market economy (where each firm takes its decisions independently of its competitors, in order to ensure a strong competition that will lead to a more efficient distribution of goods and services at lower prices, better quality, and the most of the innovation. The antitrust rules represent the response of modern legal systems in excess of market power and distortions to it, made by agreements between manufacturers.

The Monopoly of State in the Italian Antitrust Law

The Monopoly of State or Public Monopoly is a type of market in which only the manufacturer (or supplier) of a specific good or service is the state. It prevents the entry into the market through legislation on the part of individuals. In Italy, a typical Monopoly of State is that of the tobacco, that exist since 1862.

The State, which is delegated to establish and control the bodies of Antitrust, may deviate from the criteria of antitrust in the cases of "public utility". the only possible in a democratic state monopolies are public ones, as laid down in Italy by art. 43 of the Constitution of the Italian Republic.

The article. 43 of the Constitution states: "for the purposes of general interest, the Law can transfer, expropriate and compensate , public bodies or community workers or users ,certain firms or groups of firms, which relate to essential public services or sources of energy or in a monopoly situation and have the character of most general interest." The reasons are the following: there are services or goods to the importance for the community not to be subjected to the laws of the market, which are not a legitimate service for everyone, but the maximum profit, to the detriment, if any, of the existence of certain groups of the population in particular of the most vulnerable groups or less wealthy.

The Italian Competition Authority ( Autorita’ Garante della Concorrenza e del Mercato)

The Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) was established in Italy by Law no. 287 of 1990. It is an independent body, in that decisions are based on the competition law without interference by the Government. Having as aim the citizens’ welfare, the Authority enforces rules against anticompetitive agreements among undertakings, abuses of dominant position as well as concentrations (e.g., mergers and acquisitions, joint ventures) which may create or strengthen dominant positions detrimental to competition. Moreover, the Authority may send official opinions to the Government, the Parliament, the Regions and Local Authorities whenever existing or proposed legislative and administrative measures restrict competition. The Italian Competition Authority is also in charge of several other competencies, including protecting consumers from misleading advertising, comparative advertising which may bring discredit on competitors’ products or cause confusion, as well as unfair commercial practices among undertakings. Finally, the Authority enforces rules against conflicts of interest for government officials.

The Authority consists of three components, one of which is the President. Originally, the number of components was five, but at the end of 2011, has been reduced to three. The President and the members of the Authority are appointed by the Chairmen of the house and the senate. each lasts in office for seven years, non renewable.

The secretary General has the responsibility of overseeing the functioning of the office and is responsible for the structure, is appointed by the minister of economic development, on the proposal of the president of the authority. the headquarters of the Authority is in Rome.
The authority can proceed to inquiry or investigation discovery, which may result in a warning or an administrative sanction. In cases of alleged violations of the rules on competition, sanctions can be up to 10% of the turnover of the undertaking. In the case of violations of the rules for the protection of the consumer, the authority may impose sanctions up to a maximum of euro 5.000.000,00 . When considering particular situations of necessity and urgency, the authority may issue, moreover, precautionary measures, which alters part, for the protection of general interests. the AGCM has at its disposal the Guardia di Finanza ( fiscal police)for all investigations that will see the occurrence. the measures taken by the authorities are subject to the Tar Lazio (fiscal court of law).

The Antitrust Law and the relationship with the conflict of interest in Italy

What is the conflict of interest?

A conflict of interest is a condition that occurs when a high responsibility assigned to an entity that has an interest in decision-making, enter in conflict with the impartiality required by this responsibility.

It can occur in different contexts and fields: economy, law, politics, work, and health. The legal systems often regulate the conflict of interests by means of laws and regulations.
The occurrence of a conflict of interest is not in itself evidence that may have been committed misconduct.

Examples of conflict of interest may be: a politician with a prominent position or influence that uses these powers to push the legislature to approve ( approve the so called lex ad personam), repeal or amendment of a law that applies to some crime which involves him or her in some way;a judge or a prosecutor that is reported to a familiar or acquaintance in a lawsuit or on a matter in which her or his interests are involved; the participation in a contract, transaction or competition with knowledge of reserved terms of proposal.

Antitrust Legislation on the conflict of interest, the Law no. 215 of 20 July 2004, or Frattini Law

With Law Frattini Law, the will of Parliament sought to ensure that the decisions of government officials be guided exclusively by the public interest. The point is for the decision-making of the President of the Council and the Ministers and Undersecretaries to be insulated from conflicts of interest, which arise whenever office-holders are also bearers (directly or indirectly) of private interests that could conflict with public interests. As a preventive measure, the law already incorporates a listing of inherent incompatibilities between public positions and other roles. Conflicts of interest, however, can still manifest themselves whenever government actors omit mandatory actions or shape their decision-making in ways that favor their personal holdings or those of their relatives, all to the detriment of the public interest.

In details, the Law states the incompatibilities in the Section 2 of the Law such as follow: “ In performing their official duties holders of government office may not: a) hold public offices or positions other than that of member of parliament ; b) hold offices or positions or perform other functions howsoever named in public-law entities, including economic entities; c) hold offices or positions or perform other functions howsoever named or perform managerial tasks in for-profit companies or in activities of an entrepreneurial nature; d) engage in professional activities or forms of self-employment of whatsoever nature in matters connected with the government office, even if performed free of charge, in favour of public or private persons; in connection with such activities holders of government office may only receive payments for services rendered before taking office; moreover, they may not hold offices or positions or perform other duties howsoever named or carry out managerial actions in professional associations or societies; e) engage in any type of public employment or work; f) engage in any type of private employment or work. ”

The legislator gives a clear definition of the conflict of interest in the Section 3 of the Law: ”A conflict of interests shall exist under this law when holders of government office participate in the taking of an action, even by formulating the proposal, or omit taking a due action while in a situation of incompatibility , or when the action or omission has a specific and preferential impact on the assets and liabilities of the holders, their spouses or their relatives up to the second degree of kinship or of undertakings or companies they control.”

The fuction of the Italian Competition Authority regarding the conflict of interest

In the The Section 6 of the Law, it is defined the role of the Competition Authority in dealing with conflict of interest :” Competition Authority shall verify the existence of situations of incompatibility , supervise compliance with the consequent prohibitions and in cases of non-compliance promote: a) the removal or disqualification from the office or position by the competent administration or by that responsible for supervising the entity or undertaking;b) the suspension of the public or private employment relationship; c) the suspension of registration in professional rolls and registers, for which a request must be addressed to the professional organizations for the actions within their competence.

The competent organizations and authorities shall adopt these measures, taking account of the request of the Competition Authority.
In order to verify the existence of conflicts of interest , the Competition Authority shall examine, check and verify the effects of the action of holders of government office as regards their possible specific and preferential impact on the assets and liabilities of the holders, their spouses or their relatives up to the second degree of kinship or of undertakings or companies they control, with detriment to the public interest.”

Conclusion

Cases of conflict of interest in Italy

In Italy, the issue of conflict of interest in the relationship between public and private interests has become national recognition when Silvio Berlusconi (the former Prime Minister) took part in the election campaign in 1994 to fill the office of President of the Council of Ministers (office covered later on from 2001 to 2006 and from 2008 to 2011). According to the journalist Sergio Rizzo, however, Silvio Berlusconi is the last heir of a consolidated system, spread to all levels in Italian society.

The conflict is, in the case of mr Berlusconi, represented by the co ownership - in person or through family members or staff, of the television group Mediaset, and considerable property in the insurance industry, sports, construction, publishing, etc. According to several lawyers and constitutionalists, this conflict determines the legal impossibility to be elected.

The Italian Constitution, in accordance with articles. 65 and 66, obliging parliament to assess the eligibility of its members under the ordinary law, which it occupies in the dpr 361 of 30 march 1957. The house committee on elections of the house of representatives in 1994, declared in the election of Silvio Berlusconi that the rule mentioned should be reported 'the granting to individual and, therefore, if there is no ownership of the physical person, there is no problem of eligibility, while in the presence of any equity». In the successive legislatures was confirmed this view.

In 1996, senator Stephen Passigli proposed a draft law that stipulated that the public official with assets exceeding a certain amount should entrust them to a separate management company (or blind trust fund). The bill was not approved. The draft was, however,approved from the same Berlusconi government with the Law of 20 July 2004. no. 215 (rules for the resolution of conflicts of interest) (so-called Frattini Law). This rule requires that the individual entrepreneur will appoint one or more trustee, or one or more people (including relatives, friends or colleagues) with the effective management.

The European Parliament, in paragraph 38 of its resolution of 20 November 2002 expressed regret that, "in particular, in Italy, there is a situation of concentration of media power in the hands of the President of the Council, whitout legislation been adopted to regulate the conflict of interest."

Among the other Italian cases of conflict of interest, there would be the governor of Sardinia (in office from 2004 until December 2008), Renato Soru, founder of the telecommunications company, Tiscali. After his election, he left the control of the company, while continuing to maintain the 27.5% of capital (then gradually decreased up to 18%).
The government minister Monti Corrado , according to the journalist Marco Travaglio would be, in view of his professional career in banking, in a conflict of interest. Other conflicts of interest would be represented by the political activities and business of Montezemolo, Emma Marcegaglia and other politicians.

In the 17th legislature, the Chamber of Deputies is looking at a comprehensive reform of the existing rules on incompatibility and conflict of interest, already contained in law no. 215 of 2004. in particular, has been set up a unified text, drafted by the select committee, and adopted on 22 December 2015, as basic text from the committee on constitutional affairs, the presidency of the council of ministers and the ministry of the interior. This text innovation of the existing rules and regulations also preventive conflict of interests, and changing the system of disqualification of the members and of the regional councillors.
Nowadays, the conflict of interest in Italy has not yet been resolved.

References From the world wide web : The trust, wikipedia
The Economy of Industrial Organization, William G. Sheperd, The Antitrust Law.
Vent’anni dopo l’introduzione dell’Antitrust in Italia, Alberto Pera, Giuffre’ Editore, 2010
Le operazioni di merger and aquisition e il controllo antitrust delle concentrazioni; il caso T-Mobile Orange’ Marco Tonino Ferraresi.
From the world wide web: Autorita, Garante del Mercato.
From the world wide web: Ministero dell’Industria, Il monopolio di stato.
From the world wide web : The conflict of interst, wikipedia
From the world wide web: Autorita, Garante del Mercato, conflict of interest
From the world wide web:Autorita, Garante del Mercato, Law no. 2015, 20July 2004
From the world wide web : The conflict of interst in Italy, wikipedia