Italy’s competition regulator AGCM is trying to fill a loophole that has allowed several companies to evade antitrust fines and could help Amazon with an ongoing appeal, a legal expert and two sources told Reuters.
The European Commission is closely following the matter, which may have implications for a record €1.1 billion (nearly Rs.9,860 crore) fine in Italy, which the US e-commerce company is suing in local administrative courts.
A 1981 law, most recently applied to antitrust cases in Italy, requires AGCM to notify companies subject to its investigations within 90 days of becoming aware of suspected anticompetitive behavior.
The law has been used by the Council of State, Italy’s highest administrative court, over the past three years to overturn several antitrust fines for failing to meet this deadline.
Law professor Michele Ainis, a board member of AGCM until March, told Reuters that the Council of State’s approach was seriously problematic because the 90-day limit for complex antitrust cases was unrealistic.
“The Italian Cartel Office is the only (competition) authority in Europe subject to this (time) guillotine,” he said in a telephone interview. “It’s such a tight deadline that it’s almost impossible to meet it.”
Amazon was fined by AGCM in 2021 for abusing a dominant position in the Italian market to encourage the launch of its own logistics service by sellers active on Amazon.it.
Amazon said at the time that it “completely disagreed” with the Italian regulator’s decision and would appeal.
Two sources familiar with the situation confirmed that AGCM feared losing more cases being tried by the State Council on statute of limitations grounds, including Amazon’s fine.
The Council of State is the final court of appeal against AGCM decisions.
Two other sources said the issue of the 90-day rule is one of the arguments Amazon made in its appeal against the €1.1 billion fine, which is currently being heard in a lower regional administrative court.
EU engagement
The European Commission said in a statement to Reuters it was “aware of recent developments in the case law of the Italian courts and of the concerns expressed by the Italian competition authority”.
Commission spokeswoman Arianna Podesta said the EU executive was “in contact with the Italian authorities” but declined to confirm that she had sent a letter to Rome as part of proceedings that could lead to EU infringement proceedings.
Ainis said if an EU legal process was required to resolve the issue, it would be “the worst case scenario” for Italy as it would take time and potentially result in fines.
Alternatively, the government could pass legislation to fill the gap, or Italian administrative judges could seek an opinion from the EU Court of Justice.
Ainis believed that any EU legal action would be based on a 2019 EU directive on the prerogatives of national competition authorities.
Podesta cited it in her statement, noting that it was relevant.
She said it is crucial that national competition authorities have sufficient time to carry out all necessary investigations in complex cases.
“It is also important that national competition authorities can prioritize certain cases and deprioritize others,” she added.
The AGCM, the Council of State and Amazon Italy declined to comment.
© Thomson Reuters 2023
