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

In a number of recent judgments, the Supreme Administrative Court addressed the scope
of judicial review over the Competition Authority’s decisions. 563 In particular, the Supreme
Administrative Court stated that the scope of the TAR’s review of substantive findings, such
as a finding of a dominant position, is limited to an assessment of whether the Competition
Authority based its conclusions on accurately-stated facts and supported its decision on
adequate and coherent grounds. 564
For example, in one case the Competition Authority found that Enel enjoyed a dominant
565
position in the recently-liberalized market for the sale of electricity. In annulling the
decision, the TAR held that the loss of market share suffered by Enel excluded the
possibility of a dominant position. 566 Finally, the Supreme Administrative Court criticized
the TAR because it had, in fact, substituted its own appraisal of the facts for that of the
Competition Authority, and thus exceeded its powers of judicial review. 567
The Court stated
that such an assessment implies a complex and technical appraisal, on the basis of “nonscientific”
and disputable rules (such as economic rules), of the relevant circumstances of
each case. Therefore, according to the Court, such assessment is within the discretionary
powers vested in the Competition Authority, and the TAR is not entitled to substitute its
own appraisal for that of the Competition Authority.
(b) Standing to Appeal Decisions of the Competition Authority
In a landmark judgment, Motorola v. Autorità Garante della Concorrenza e del
Mercato, 568
the Supreme Administrative Court finally overturned the traditional position of
the Administrative Courts, under which only the addressees of the Competition Authority’s
decisions had locus standi to seek the decisions’ annulment. In Motorola, the Court clearly
stated that a rule precluding persons other than those to whom a decision is addressed from
appealing would infringe the fundamental constitutional principle of the effectiveness of
563 See, e.g., Autorità Garante della Concorrenza e del Mercato v. Enel, 1 Oct. 2002, n. 5156
(concerning a merger case). For a similar position by the Supreme Administrative Court concerning
a cartel case, see Axa Assicurazioni v. Autorità Garante della Concorrenza e del Mercato, 23 Apr.
2002, n. 2199/2002 (Cons. stato) (referring to the E.C.J.’s judgments on the scope of the judicial
review in Case 42/84, Remia v. Commission, 1985 E.C.R. 2545, Joined Cases 142 & 156/84, BAT
& Reynolds v. Commission, 1987 E.C.R. 1849, and Case 6-7/95 P, John Deere v. Commission, 1998
E.C.R. I-3111). Meanwhile, for a case of abuse of dominance, see Coca-Cola v. Autorità Garante
della Concorrenza e del Mercato, 19 July 2002, n. 4001 (Cons. stato), and, more recently, the TAR
judgment in Ristomat v. Autorità Garante della Concorrenza e del Mercato, 10 Mar. 2003, n. 1790
(Trib. ammin. reg.).
564
By contrast, the Supreme Administrative Court held that the TAR has the power of full judicial
review with respect to the imposition of fines and cease and desist orders. See Coca-Cola v. Autorità
Garante della Concorrenza e del Mercato, 19 July 2002, n. 4001 (Cons. stato).
565
Enel-France Telecom/New Wind, 28 Feb. 2001, n. C4438, Bulletin 8/2001.
566
Enel v. Autorità Garante della Concorrenza e del Mercato, 14 Nov. 2001, n. 9534 (Trib. ammin.
reg.).
567
Autorità Garante della Concorrenza e del Mercato v. Enel, 1 Oct. 2002, n. 5156 (Cons. stato).
568
Motorola v. Autorità Garante della Concorrenza e del Mercato, 14 June 2004, n. 3685 (Cons. stato).
156