Procedural issues lead the administrative judges to cancel the sanction of over 100 million that the Agcm had imposed on Apple and Amazon. Facts, comments and reactions
The Lazio TAR confetti the fine of over 100 million imposed by the Antitrust in November 2021 on Apple and Amazon, which ended up in the sights of the Agcm and heavily sanctioned on charges of anti-competitive agreement.
BECAUSE THE ANTITRUST HAD MULTIPLE APPLE AND AMAZON
The sanction aimed to punish, summarizes the Tar, "a clause of the contract between Apple and Amazon in 2018" which would have reserved the sale on the Amazon marketplace to the so-called Apple Premium Resellers (Apr). The clause aimed to combat counterfeiting by limiting sales on Amazon marketplaces in the EU to retailers who meet the highest standards of quality and investment.
An agreement, according to the Agcm, which would have allowed the retailers of the colossus led by Tim Cook to have exclusive access to a privileged window to sell their products, to the detriment of all the others. For Agcom, in fact, this limitation "integrated a violation of competition with the reduction of the number of third-party resellers present in a relevant distribution channel".
THE TEXT OF THE PROVISION
"The investigation – reads the November text – made it possible to ascertain that certain contractual clauses of an agreement signed on October 31, 2018 – which prohibited official and unofficial retailers of Apple and Beats products from using Amazon.it, allowing the sale of Apple and Beats products in this marketplace only to Amazon and to certain individuals chosen individually and in a discriminatory way – violate art. 101 of the Treaty on the Functioning of the European Union ".
“In fact, during the investigation, the desire to introduce a purely quantitative restriction on the number of retailers was ascertained, allowing only Amazon and certain subjects, identified in a discriminatory way, to operate on Amazon.it. The terms of the agreement also restricted cross-border sales, as retailers were discriminated against on a geographic basis. The restrictions of the agreement have affected the level of discounts offered by third parties on Amazon.it, decreasing their size ”.
THE TAR: AGCM TOO SLOW WITH APPLE AND AMAZON
The administrative judges did not dismiss the accusation, but, in rejecting the sanction imposed by the Antitrust, they motivated that "from the examination of the unfolding of the facts it is clear that the Agcm could have acquired all the information necessary to outline the elements- basis of the offense and, therefore, decide whether or not to initiate the subsequent investigation phase in a much shorter period of time than that actually elapsed, during which no activities appear to have been carried out ".
This circumstance, the TAR motivated, is in contrast "with the respect of the principles of good performance and efficiency of administrative action, in the light of the jurisprudential guidelines". Furthermore, according to the Lazio Regional Administrative Court, the defensive space provided to the parties in the proceedings would have been unsuitable for guaranteeing the actual carrying out of the cross-examination.
THE ANTITRUST MOVES
After all, that there had been some messes it was already sensed in January when the Antitrust had announced that it had reduced "for a clerical error" the penalties imposed on Apple and Amazon respectively by 20 and 10 million euros: the fine imposed on the the Cupertino company had gone from about 134 million euros to 114 million and for the giant founded by Jeff Bezos from about 68 million to 58. With the same intervention, recognizing the mess, the Antitrust had also corrected the deadline for payment, taking it from 30 to 90 days from the notification of the provision.
THE ANALYSIS OF LAWYER SCIALDONE
The lawyer Marco Scialdone commented on Linkedin: "The provision presents aspects of considerable interest also for any follow-on actions because it does not pronounce on the merits of the agreement (which, therefore, would not suffer from the negative ruling of the TAR) but focuses on the defects in the procedure that led to the adoption of the provision. Two in particular: 1. The deadline for initiating the procedure: according to the TAR it is not possible to justify the completion of a pre-preliminary activity that lasts for a period of time totally free from any constraint and unjustifiably prolonged, since such a modus operandi would be in open contrast with the positivized principles in law no. 241/90. 2. deadlines for defense: according to the TAR, the defensive space guaranteed to the parties to the proceedings was unsuitable for guaranteeing the effective implementation of the cross-examination ".
THE SHEET'S COMMENT
A similar sentence, born on the basis of similar errors, could not fail to have a media echo. Il Foglio commented: “The decision of the TAR provides an interesting interpretation: if you fail to demonstrate the illicit nature of someone's conduct, have them plead guilty until proven guilty. Otherwise you have to convince the Tar ".
THE SATISFACTION OF AMAZON AND APPLE
“We welcome the decision of the TAR. Our business model across Europe is built on the success of small and medium-sized businesses and we will continue to work hard to deliver a broad selection of Apple products, the quality of service and convenience that our customers love, "reads one. note released by Amazon.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/perche-il-tar-ha-stracciato-la-maximulta-antitrust-ad-apple-e-amazon/ on Tue, 04 Oct 2022 08:24:44 +0000.