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

managers were acquitted. The companies involved in the antitrust investigation argued that
the Competition Authority should have considered this outcome in its proceedings. The
Competition Authority rejected this argument, stating that the antitrust investigation is
distinct from the criminal investigation as it has different aims as well as different standards
of proof.
The parties challenged the decision before the TAR and subsequently before the
Supreme Administrative Court. Both Administrative Courts upheld the Competition
Authority’s position that criminal findings are not binding for the Competition Authority.
Moreover, the Courts also held that criminal findings are not binding for the administrative
judge. The TAR, in particular, held that the evidence relied upon by the criminal judge and
by the Competition Authority was different since the Competition Authority based its
findings mostly on the evidence collected during the surprise inspections that took place
after the criminal ruling. 70 The Supreme Administrative Court, then, held that criminal
proceedings are binding for the administrative judge only in relation to those material facts
that were considered as having actually occurred and were thus relevant for the final
criminal judgment. 71
(i) Successor’s Liability
In Variazione di prezzo di alcune marche di tabacchi, 72 there was a question as to
whether a company acquiring a business involved in a violation becomes liable for the
acquired business’ previous antitrust violations in a situation where the previous parent
company (the seller of the business concerned) still exists. The precise answer to this
question is uncertain under both EU and Italian competition law. 73
In an important decision concerning a cartel among tobacco manufacturers, the
Competition Authority addressed the issue of the attribution of liability and fines for
infringements of the Competition Law.
74
The Competition Authority found that the two
leading tobacco companies operating on the Italian cigarette market—Philip Morris (PM)
and Amministrazione Autonoma dei Monopoli di Stato (AAMS), a public authority in
charge of managing the state tobacco monopoly—had entered into and implemented a
restrictive agreement between 1993 and 2001. In 1999, AAMS became a state-owned
private company under the name of ETI S.p.A. (ETI).
Considering the serious nature of the offenses, the Authority imposed total fines of € 50
million on five companies within the PM group that were parties to the agreement, as well as
70
Sanitas and Others v. Autorità Garante della Concorrenza e del Mercato, 7 Mar. 2007, n. 4123/2007
(Trib. ammin. reg.), 5.1.
71
IMS-International Medical Service S.r.l. and Others v. Autorità Garante della Concorrenza e del
Mercato, 29 Feb. 2008, n. 760 (Cons. stato), 3.
72
Variazione di prezzo di alcune marche di tabacchi, 13 Mar. 2003, n. I479, Bulletin 11/2003.
73
For EU competition law, see Case C-49/92 P, Commission v. Anic, 1999 E.C.R. I-04125, 145, and
Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, C-219/00 P, Aalborg
Portland A/S and Others, 2004 E.C.R. I-00123, 358-359.
74
Variazione di prezzo di alcune marche di tabacchi, 10 Mar. 2003, n. I479, Bulletin 11/2003.
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