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Antitrust: Rassegna di tutta la giurisprudenza amministrativa nel trimestre aprile / giugno 2013 – III parte

Continuiamo con le pubblicazioni dei quattro articoli di Carlo Edoardo Cazzato apparsi su Concurrences il 12 settembre 2013 in cui l’autore passa in rassegna tutta la giurisprudenza amministrativa antitrust nel trimestre aprile/giugno 2013. Qui di seguito il terzo contributo della serie, che analizza la decisione del TAR Lazio, Sez. I, n. 5796 del 10 giugno 2013.

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Italian antitrust administrative case law. An overview of all decisions from April to June 2013. Third contribution: TAR Latium, Sec. I, 10 June 2013, No. 5796.

1. Premise – This work is the third contribution of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, which involve the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter, the “AGCM”).

Specifically, the reference is to those decisions related to proceeding concerning only anticompetitive agreements and abuses of dominant position in which the AGCM was party (as either plaintiff or respondent). With this purpose the Project will take into account all the decisions of the TAR Latium (the Italian Regional Administrative Court of first instance, hereinafter the “TAR”)[1] and of the Consiglio di Stato (the Italian Administrative Court of second instance, hereinafter the “CdS”)[2] in the first quarter taken into consideration, from the start of April to the end of June 2013 (hereinafter, the “Quarter”).

As far as we know, the Quarter under discussion saw the AGCM involved in nine decisions of TAR. Among them, one is related to unfair commercial practices[3], one case concerns the new AGCM’s powers ex article 21-bis of Law No. 287 of 10 October 1990 (hereinafter, the “Italian Competition Law)[4] and in two decisions the TAR limited itself to dismiss the proceedings[5]. In light of the above, they will not be taken into account for the purpose of the Project under consideration, which will focus only on the residual five cases[6].

In the same manner, as far as we know, during the Quarter the AGCM was involved in three decisions issued by the CdS. However, one concerns a case of unfair commercial practice and another one a merger so they will not be taken into consideration[7]. Finally, the Project will examine in depth only one decision[8].

In light of the above, the present work will examine the fourth decision taken into account in depth – TAR Latium, Sec. I, 10 June 2013, No. 5796 (hereinafter, the “Decision”) -, highlighting the aspects of interest. In order to offer the above said general overview of the concerned Quarter, the present article, which follows the First and Second contributions[9], will be integrated by a further submission focusing on the residual concerned decision.

2. The Decision still regards the amount of the imposed fines and specifically the calculation of interests in case of delay in the payment of antitrust fines[10].

Indeed, the action under discussion, brought by Jotun Italia S.p.A. (hereinafter, the “Jotun”), challenged some notes of the AGCM regarding the amount that should be taken into consideration in order to calculate the above said interests.

Specifically, it concerns an anticompetitive agreement ascertained by the AGCM on 9 February 2007[11]. The imposed sanction, originally amounting to €1,134,000, was recalculated to €486,000 by the TAR and to €777,666 by the CdS[12].

On 26 June 2012 Jotun paid the difference between the above said amounts (€291,600). However, after the AGCM asked Jotun to pay a sum obtained by multiplying the 10% of the fine recalculated by the CdS (€29,160) for 10[13]. Indeed, according to the AGCM the delay in the payment amounted to 10 semesters, calculating from the date of the original AGCM’s decision under the case law of the Italian Supreme Court[14].

Definitively, in this case the AGCM calculated the interests under discussion taking into account the time between the administrative fine and the final decision of the CdS. On this basis, in the Decision the TAR, accepting the related action, confirmed that “when the Administrative Court […] (both totally and partially) annuls the AGCM’s decision, the above said decision needs to be considered as tamquam non esset. Consequently, this decision cannot be taken into account as starting date with reference to the payment of the sanction“. In light of the above, the Decision were considered in contrast with article 27, paragraph 6 of the Law No. 689 of 24 November 1981, which imposes the sanctioning increase under discussion[15]. According to the TAR the interests need to be calculated starting from the date of filing of the CdS’s decision. Specifically, it was observed that “only through the filing of the decision of the CdS the sanction becomes payable so that also the surcharge under discussion becomes payable“.

The Decision appears coherent with Italian administrative case law[16]. In contrast, the reference to the Italian Supreme Court’s case law was not relevant because the decision cited concerned a case in which no fine was paid by the sanctioned undertaking.

3. Conclusions – Most decisions, in which the AGCM was involved during the Quarter, concerns anticompetitive agreements. This was allegedly caused by the general pre-eminence of cartel cases compared with the number of abusive conducts[17].

Among them, as in the Decision under discussion, the amount of the imposed fines represents the core topic focused on by Italian administrative Courts[18].

In this perspective, the affirmed principles appear consistent with the dominant administrative case law. Indeed, according to a strengthened position administrative Courts “shall assess the facts, in order to ascertain whether the factual reconstruction was affected by distortion or defects, and assess whether the relevant rules were correctly singled out, interpreted and applied […]”[19]. Specifically, the case law has ascertained that the administrative Courts through a case-by-case approach “shall balance the effectiveness of judicial protection with the technical discretion of the AGCM, avoiding that the Judge exercises the AGCM’s administrative powers[20].


[1] All the related decisions are available at

http://www.giustizia-amministrativa.it/WEBY2K/frmRicercaSentenza.asp

[2] All the related decisions are available at

http://www.giustizia-amministrativa.it/webcds/frmRicercaSentenza.asp

[3] TAR Latium, Sec. I, 11 April 2013, No. 3722.

[4] TAR Latium, Sec. II, 6 May 2013, No. 4451.

[5] TAR Latium, Sec. I, 22 April 2013, No. 4009 and TAR Latium, Sec. I, 22 April 2013, No. 4011.

[6] TAR Latium, Sec. I, 11 April 2013, No. 3718; TAR Latium, Sec. I, 11 April 2013, No. 3724; TAR Latium, Sec. I, 7 May 2013, No. 4478; TAR Latium, Sec. I, 10 June 2013, No. 5796; TAR Latium, Sec. I, 11 June 2013, No. 5822.

[7] CdS, Sec. VI, 18 April 2013, No. 2143 and CdS, Sec. VI, 12 April 2013, No. 2002, respectively.

[8] CdS, Sec. VI, 21 May 2013, No. 2722.

[9] Which regard TAR Latium, Sec. I, 11 April 2013, No. 3718 (and TAR Latium, Sec. I, 11 April 2013, No. 3724) and TAR Latium, Sec. I, 7 May 2013, No. 4478, respectively.

[10] In the same Quarter, see TAR Latium, Sec. I, 11 April 2013, No. 3718; TAR Latium, Sec. I, 10 June 2013, No. 5796; TAR Latium, Sec. I, 11 June 2013, No. 5822. Specifically, TAR Latium, Sec. I, 11 June 2013, No. 5822 follows the action launched by Barelatyer Cropscience S.r.l. regarding an AGCM decision (AGCM, A415 – Sapec Agro/Bayer-Helm, Decision of 28 June 2011, No. 22558, in Boll. Uff., No. 26/2011), initially annulled by the TAR and subsequently restored by the CdS (TAR Latium, Sec. I, 16 May 2012, No. 4403 and CdS, Sec. VI, 29 January 2013, No. 548, respectively). By mean of Note No. 12836 dated 30 January 2013, the AGCM asked Barelatyer for payment of the original sanction and of the interests calculating from the date of the original decision of the AGCM to that of the CdS under article 27, paragraph 6, of Law No. 689, dated 24 November 1981. Differently from the Decision, in this one the plaintiff agreed with the AGCM’s request for an increase but only with reference to the time from the deadline for the payment of the original sanction and the date of the publication of the TAR’s operating part of the decision and in the same manner from the publication of the CdS’s operating part of the sentence.

[11] AGCM, I646 – Produttori vernici marine, Decision of 25 January 2007, No. 16404, in Boll. Uff., No. 4/2007.

[12] TAR Latium, Sec. I, 29 December 2007, No. 14157, and CdS, Sec. VI, 29 May 2012, No. 3189, respectively.

[13] Note of 5 September 2012, No. 52808.

[14] See note 12.

[15] About the sanctioning (and not compensating) nature of the above said increase, please see C.Cost., 7 July 1999, No. 308; CdS, Sec. VI, 25 May 2012, No. 3058; CdS, Opinion of 22 October 2008, No. 1993.

[16] See, ex multis, CdS, Sec. VI, 21 February 2008, No. 636; TAR Latium, Sec. I, 24 January 2013, No. 867; TAR Latium, Sec. I, 29 November 2012, No. 9957.

[17] M. Carpagnano – A. Nuzzi, L’antitrust in numeri. Rappresentazione quantitativa sintetica dell’attività di tutela della concorrenza svolta in Italia nel 2011, Trento-Roma, giugno 2012, pp. 16-17, available at www.osservatorioantitrust.eu. An analysis of the current year, is available at http://www.osservatorioantitrust.eu/index.php?id=884&L=5%252525252525252525252525252525252525252525252525252525252527.

[18] In the same Quarter, see TAR Latium, Sec. I, 11 April 2013, No. 3718; TAR Latium, Sec. I, 10 June 2013, No. 5796; TAR Latium, Sec. I, 11 June 2013, No. 5822. Specifically, the decision of TAR Latium, Sec. I, No. 3718, dated 11 April 2013, has the same premises of the commented decision. It regards the claim of Albini & Pitigliani S.p.A., undertaking on which the First Decision imposed a sanction of €8,477,792. Also in this case the TAR on the basis of the same arguments annulled the First Decision in parte qua (see TAR Latium, Sec. I, 29 March 2012, No. 3029). In light of the above, Albini & Pitigliani S.p.A. brought an action for the execution of decision No. 3035/2012 against measure of the AGCM No. 23888/2012, which recalculated the said amount obtaining the same sum (see AGCM, I722C – Logistica internazionale-Albini & Pitignani/Rideterminazione della sanzione, Decision of 12 September 2012, No. 23887, in Boll. Uff., No. 37/2012).

[19] See CdS, Sec. VI, 1 March 2012, No. 1192; CdS, Sec. VI, 24 September 2012, No. 5067; TAR Latium, Sec. I, 3 July 2012, No. 6044; TAR Latium, Sec. I, 18 December 2012, No. 8614.

[20] CdS, Sec. VI, 13 September 2012, No. 4873.