On 3 October 2022, the Lazio Regional Administrative Court (“TAR Lazio”) annulled a decision issued by the Italian Competition Authority (“AGCM”) back in November 2021, by which the AGCM had fined Apple and Amazon for a total amount of 173.3 million euros.
As we had previously reported here, the AGCM considered that Apple and Amazon had entered into a distribution agreement in violation of Article 101 of the TFUE. More specifically, Apple and Amazon had reserved the sale of the Apple and Beats products on the Amazon.it marketplace to a list of specifically named operators (included amongst the so-called “Apple Premium Resellers”).
The AGCM regarded this as a competition violation both by object and by effect, as it determined both a reduction of the distributors admitted on the Amazon platform – regardless of any qualitative and not-discriminatory criteria – and a reduction in sales of the Apple products.
Apple and Amazon appealed the AGCM decision, both on substantive and procedural grounds. However, the TAR Lazio did not consider any of the substantive arguments as it annulled the AGCM decision by upholding the procedural grounds of appeal in their entirety.
In particular, the TAR Lazio has concluded that the AGCM:
By confirming a settled administrative case law approach, the TAR Lazio assessed the compatibility of AGCM's behaviour in the light of the general principles set out in Article 6 ECHR and Article 41 of the EU Charter of Fundamental Rights, which are essential parameters for the administrative judges in ascertaining the legitimacy of antitrust enforcement.
In this sense, it has been confirmed that even the pre-investigation phase must be concluded in a reasonably congruous timeframe, considering the complexity of the case and, therefore, taking into account the time required to formulate the challenge. Equally, the time limits granted for the parties' defences must be such as to ensure the effective exercise of the right to be heard.
This application of supranational legal sources could also be of interest for other EU jurisdictions.