Why did the Tar rejected the Agcm fine to Amazon and Apple?
The sentence of the Lazio TAR which annulled the Antitrust fine to Amazon and Apple analyzed by the lawyer Marco Scialdone, adjunct professor of law and management of digital content and services at the European University of Rome
Why has the Lazio TAR rejected the Antitrust fine of 100 million to Amazon and Apple? On what grounds did the sentence override the Agcm provision? And what will the Market Guarantor do now?
These and other questions are answered by the lawyer Marco Scialdone, adjunct professor of law and management of digital content and services at the European University of Rome, after having read the sentence of the TAR.
Why did the TAR cancel the Antitrust fine to Amazon and Apple?
The TAR found the validity of the formal complaints made by Amazon and Apple, relating to the violation of the deadline for initiating the procedure and the defense deadlines provided for in favor of the parties for the presentation of defensive briefs and documents. Although the appeal (rectius: the appeals, since they are different proceedings, then joined together) was divided into a multiplicity of reasons, the Court, for logical reasons, first scrutinized those of a formal nature, deeming them well founded.
So what has the TAR focused on in practice?
In particular, as regards the violation of the deadline for initiating the procedure, the TAR found that, although the Authority had received on February 22, 2019 the report about the existence of an alleged agreement restricting competition between Amazon and Apple, he would then have waited a good 17 months (on 21 July 2020) for the notification of the initiation of the procedure without any activity carried out by Agcm medio tempore being documented.
And how did the administrative judges beat the Antitrust?
On this point, the Regional Administrative Court, despite having considered not applicable (as requested by the applicants) the deadline of only 90 days provided for by art. 14, Law 689/1981, has however ruled that it is not possible to justify the completion of a pre-preliminary activity "which 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 and, more generally, with the need for administrative efficiency and the certainty of the professional subjected to the procedure ". The Court also had the opportunity to recall art. 6 of the ECHR and art. 41 of the Fundamental Charter of EU rights, which are essential parameters and from the reading of which one can only infer the obligation for the competent Authority to ascertain a violation of antitrust law and to apply the related sanctions by starting the investigation phase within a reasonably reasonable term, in relation to the complexity of the case submitted, under penalty of violation of the principles of legality and good performance which must always distinguish the work.
What is the second reason with which the TAR canceled the fine?
The second formal reason that led to the annulment of the sanction was the violation of the right of defense due to the excessively short term allotted to the parties for their concluding observations. As clarified in the sentence, the regulation on preliminary procedures provides for a mandatory deadline of at least 30 days from the closure of the preliminary investigation to allow the parties to counter-argue on preliminary investigations. In the present case, with the communication of the preliminary findings, dated 30 July 2021, a term coinciding with the minimum regulatory deadline was assigned, which expired on 30 August 2021; following the request for extension made by the parties, the deadline was extended by 15 days, until mid-September.
However, the access to the data relating to the economic analysis took place through the organization of a specific data room by the Agcm, which took place on 24 August 2021, so that the parties were able to have an overview complete only when most of the term had already expired so that, also due to the extension, only 20 days remained to prepare the defenses. In consideration of the overall duration of the investigation, according to the TAR there was an evident compression of the rights of defense of the parties.
Did the Agcm therefore commit procedural errors? Not a small oversight, right?
According to the TAR, obviously yes: for both the aforementioned profiles, the Court stigmatized the Authority's behavior. With reference to the delay in initiating the procedure, he defined it as "a particularly serious vulnerability", since the timely initiation of the investigation is of fundamental importance to prevent the continuation of the activity deemed incompatible with the rules set to protect competition and to promptly correct the unlawful conduct of the operators. With reference to the compression of the right of defense, there was also an emphasis on the unequal treatment with respect to other proceedings relating to cases of similar complexity.
Let's recap. the Tar has not entered into the merits of the fine? So the violations noted in the Antitrust decision were real? And in this case the Agcm could return to the established question?
The TAR did not analyze the actual restrictive scope of the agreement (the existence of which is not, however, disputed) because the substantive complaints of the provision remained absorbed by the formal ones. The Authority had considered in its provision that that agreement had had a restrictive effect on the market with repercussions, downstream, on the price paid by consumers who would have benefited from lower discounts due to the reduction in the number of operators present on the marketplace. Starting from the Authority's data, it is possible to estimate a damage for Italian consumers of up to 142 million euros. It is a pity that the matter could not be scrutinized on the merits: given the complaints made by the TAR, I doubt that the Agcm can start another procedure from scratch, unless other circumstances emerge.
In your opinion, will the Agcm appeal to the Council of State?
Of this I am absolutely certain. The assessments on the violation of the deadline for initiating the procedure and on the compression of the right of defense, as mentioned, are based on a certain line of interpretation rather than on the precise violation of legal terms. When this happens, there is always room to articulate valid reasons for appeal, trusting in a different orientation of the Council of State.
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-bocciato-la-multa-agcm-ad-amazon-e-apple/ on Tue, 04 Oct 2022 13:40:47 +0000.