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

arguments to the parties. Unfortunately, the reason why such raw data were considered by
the Court to be virtually “useless” to this end are not explained fully in the Court’s opinion.
Finally, the requirement that information must be “essential” or “absolutely necessary” for
the exercise of the rights of defense sets a very high standard for requests for access to
confidential documents which finds no equivalent in the Commission’s Notice on Access to
File. 517
(e) The Competition Authority’s Powers of Investigation
Decree No. 217/1998 lays down the relevant procedural rules for the enforcement of the
Competition Law. The list of investigative powers provided for in Section 14 of the
Competition Law and the Decree No. 217/1998 is exhaustive and does not include the
exercise of any type of general surveillance powers such as bugging, telephone tapping, or
trailing individuals allegedly involved in cartel conduct.
Pursuant to Section 8 of Decree No. 217/1998, the Competition Authority may exercise
its investigative powers only after it serves on the companies involved, typically at the outset
of an on-site surprise inspection, the decision to open proceedings. This decision must
clearly indicate the presumed facts that it intends to investigate.
For companies established outside of Italy, service of process of the Competition
Authority’s decisions to open proceedings is accomplished through the diplomatic channel,
which takes considerably longer than notification by the Competition Authority officials
before the commencement of a dawn raid. Accordingly, where a dawn raid is staged to take
place simultaneously at the premises of several companies, companies established outside of
Italy and in a country other than a Member State of the EU are not raided, even with the
assistance of the local antitrust authority’s staff.
Under the new investigative powers granted to the National Competition Authorities
(“NCAs”) of the Member States under Article 22 of Regulation (EC) No. 1/2003, in
particular, the Competition Authority may now seek the assistance of another NCA to carry
out investigative activity in the latter’s jurisdiction on its behalf.
In Price of Specialty Milk, 518
the Competition Authority fined baby milk producers for
coordinating pricing and advertising policies of newborn infant formula and follow-on milk,
in violation of Article 101 TFEU, which would have resulted in substantially higher prices
in Italy than in other European countries. This case is noteworthy as it offers a good
illustration of the close cooperation among the NCAs, pursuant to Section 22(1) of
Regulation (EC) No. 1/2003, that resulted in coordinated investigative efforts. The French,
German, and Spanish NCA’s carried out dawn raids in their respective territories on behalf
of the Competition Authority with a view to securing relevant documentation.
517 Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 101
and 102 TFEU, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No.
139/2004, 2005 O.J. (C 325) 7.
518 Prezzi del latte per l’infanzia, 12 Oct. 2005, n. I623, Bulletin 40/2005. In Soc. Milte Italia S.p.A. and
Others v. Autorità Garante della Concorrenza e del Mercato, 3 Oct. 2006, n. 9878 (Trib. ammin.
reg.), the TAR rejected entirely all appeals against the decision.
140