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

judicial protection. Therefore, persons other than addressees may be entitled to appeal a
decision, provided that such persons are directly and individually prejudiced by it. This is
typically (but not exclusively) the case for competitors, as implicitly confirmed by the fact
that the Competition Law and Decree No. 217/1998 provide specific procedural rights 569
to
all interested third parties in connection with Competition Authority proceedings that may
directly and immediately prejudice them.
The Court also noted that its conclusion is in line with Court of Justice case law
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interpreting Article 263(4) TFEU (ex Article 230 TEC). Indeed, the Competition
Authority is entitled to apply Articles 101 and 102 TFEU and, pursuant to a well-established
case law of the EU Courts, persons other than those to whom a decision is addressed may,
under certain circumstances, 571 lodge an appeal. The Motorola judgment - even though
adopted in relation to a decision exempting a restrictive agreement under Section 4 of the
Competition Law - affirms principles, and is supported by arguments, that could also apply
to decisions clearing a proposed concentration. 572
573
Indeed, in Fondiaria Industriale Romagnola the Supreme Administrative Court
extended the scope of the Motorola judgment, reaching the same conclusions in the area of
merger control and holding that third parties can challenge merger clearance decisions.
Based on the then-settled case law, the TAR had initially rejected as inadmissible Fondiaria
Industriale Romagnola’s (FIR) appeal against a decision authorizing, subject to certain
conditions, the acquisition and the subsequent division in two separate corporate entities of
Eridania, the largest sugar producer in Italy, by Seci-Sadam, Co.prob and Finbieticola. The
Supreme Administrative Court reversed this judgment, holding that third parties (such as
569 These third-party procedural rights include: (i) the right to participate in the proceedings; (ii) the
right to be notified of the Authority’s decision to open an investigation; and (iii) the right to
participate in the final hearing before the Authority’s Board. See Presidential Decree No. 217/1998,
§§ 6(4), 7 and 14(5).
570
Pursuant to Article 263(4) TFEU, “[a]ny natural or legal person may, under the conditions laid down
in the first and second paragraphs, institute proceedings against an act addressed to that person or
which is of direct and individual concern to them, and against a regulatory act which is of direct
concern to them and does not entail implementing measures.”
571
Such appellate rights exist if a decision affects third parties by reason of certain peculiar attributes,
or if a decision differentiates them from all other persons, and by virtue of these factors distinguishes
them individually (as is the case with the person to whom the decision is actually addressed).
572
For example, in Società Ambrosiana Gelati S.a.s. and others v. Autorità Garante della Concorrenza e
del Mercato, 24 Feb. 2004, n. 1715 (Trib. ammin. reg.), the TAR held that persons other than the
addressees may be entitled to appeal a decision adopted by the Authority pursuant to Article 101
TFEU (and its Italian equivalent, § 2 of the Competition Law), provided that such persons can show
that the activity “illegitimately authorized” by the decision is unfairly prejudicial to them, as well as
to free competition, in the relevant market. In some passages, the TAR’s reasoning also explicitly
refers to merger control decisions. The TAR judgment was subsequently quashed by the Supreme
Administrative Court on grounds different from the one addressed in this section. See Società
Ambrosiana Gelati S.a.s. and others v. Autorità Garante della Concorrenza e del Mercato, 2 Oct.
2007, n. 5070 (Cons. stato).
573
Fondiaria Industriale Romagnola S.p.A v. Autorità Garante della Concorrenza e del Mercato, 21
Mar. 2005, n. 1113 (Cons. Stato).
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