Italy’s competition watchdog, AGCM, is attempting to close a legal loophole that allows various companies to dodge antitrust fines, which could benefit Amazon in an ongoing appeal. A legal expert and two sources have informed Reuters that the European Commission is closely monitoring the situation, which could impact a record fine of €1.1bn that Amazon is disputing before local administrative courts in Italy. The AGCM must notify companies being investigated of alleged anti-competitive behaviour within 90 days of becoming aware of it, according to a law implemented in 1981 and recently applied to antitrust cases in Italy. The country’s top administrative court, the Council of State, has used this law over the last three years to scrap several antitrust penalties because of a failure to meet the time limitation. Amazon has presented the 90-day rule as one of its arguments in its appeal of the €1.1bn fine.
The AGCM is concerned about losing more cases before the Council of State on time limitation grounds, including the Amazon fine. The Council of State is the final court of appeal against the AGCM’s decisions. Two sources confirmed this to Reuters. Law professor Michele Ainis, an AGCM board member until March, stated that the Council of State’s approach is seriously problematic because the 90-day limitation is unrealistic for complex antitrust cases. He added that the Italian antitrust is the only competition agency in Europe subject to this time limit and that it is almost impossible to respect.
If legal proceedings from the EU were needed to settle the issue, this would be the worst-case scenario for Italy, as it would take time and lead to possible fines. Alternatively, the government could pass a law to close the loophole, or Italian administrative judges could seek an opinion from the EU Court of Justice. Ainis believed any EU legal action would be based on a 2019 EU directive on the prerogatives of national competition authorities, which Commission spokeswoman Arianna Podesta cited in her statement, indicating its relevance. Podesta stressed that it is crucial that national competition authorities have sufficient time to conduct all the necessary investigations in complex cases and that they can prioritise certain cases and deprioritise others. The AGCM, the Council of State, and Amazon Italy have declined to comment.
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