Competition Law in Italy The first 20 years of law and practice

investigation in a market that had previously been the subject of a Section 12(2) market
investigation have a limited right of access to the documents gathered, in that context, by the
Competition Authority. 512
The TAR held that a request for access to the file with respect to
documents previously gathered in a survey can only be satisfied with respect to documents
(i) mentioned in the Competition Authority’s decision opening the antitrust investigation;
(ii) referred to in a document under (i); or (iii) specifically identified in the request. As for
documents under (iii), the applicant must demonstrate why such documents will be of
assistance in illustrating its position, and must also demonstrate that the communication of
such documents will not result in the disclosure of confidential information or business
secrets.
513
On appeal in the Prezzi del latte per l’infanzia cartel case, the Supreme
Administrative Court clarified the relationship between the principle of fair process and the
right to have access to the file in administrative proceedings before the Competition
Authority. Humana and Nutricia had initially challenged a TAR ruling 514 upholding a
decision by the Competition Authority to impose a fine for a cartel in the market for infant
milks. 515 They had argued that they had been denied access to the case file on the ground of
confidentiality of some raw economic data which the Competition Authority had used to
support its charges. Humana and Nutricia claimed that, by being unable to access those data,
they had been incapable of understanding the methodology used by the Competition
Authority in preparing some tables intended to show collusion and parallelism of behavior
among cartel participants. In rejecting the appeals, the Supreme Administrative Court
acknowledged that the Competition Authority had indeed used the data in supporting its
allegation. However, it concluded that in the context of the Competition Authority’s charges,
such data played a “completely marginal role in demonstrating the existence of an
infringement”. 516
Therefore, knowledge of such data was not “essential” or “absolutely
necessary” for the exercise of Humana and Nutricia’s rights of defense. This ruling is the
source of some concerns as it seemingly limits the protection of the defendants’ rights of
defense. In particular, the decision on what is of “essential relevance” for the exercise of the
rights of defense apparently now is for the Competition Authority to take and not the
defendants. Understandably, the Competition Authority must follow a criterion of
reasonableness when evaluating confidentiality claims and requests for access to
confidential data. However, information used by the Competition Authority when
formulating its charges—albeit only peripherally—should be fully available to the parties. In
the present case, it appears that the raw data could have at least potentially helped explain
the higher level of prices in Italy vis-à-vis other countries, thus providing further defense
512
Medusa Film & Cinema 5 Gestione v. Autorità Garante della Concorrenza e del Mercato, 14 Sept.
2000, n. 7089/2000 (Trib. ammin. reg.).
513
Heinz Italia and Others v. Autorità Garante della Concorrenza e del Mercato, 30 Oct. 2007, n. 501
(Cons. stato).
514
Milte Italia and Others v. Autorità Garante della Concorrenza e del Mercato, 21 June 2006, n. 9878
(Trib. ammin. reg.).
515
Prezzi del latte per l’infanzia, 12 Oct. 2005, n. I623, Bulletin 40/2005.
516 Id.
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