Amazon may take advantage of the legal loophole that the Italian AGCM is trying to work on
Italy’s competition watchdog is trying to close a legal loophole that has allowed many companies to evade antitrust fines and could help Amazon with an ongoing appeal, a legal expert and two sources told Reuters.
The European Commission is following the matter closely, which has potential ramifications for the record €1.1 billion (roughly Rs. 9,860 crores) fine Italy is challenging the US e-commerce company in local administrative courts.
The 1981 law, only recently applied to antitrust cases in Italy, indicates that the AGCM must notify the companies targeted by its investigations within 90 days of becoming aware of alleged anti-competitive behaviour.
The law has been used by the Council of State, Italy’s highest administrative court, over the past three years to overturn numerous antitrust penalties for failure to meet this time limit.
Law professor Michele Innes, a board member of the AGCM until March, told Reuters that the state council’s approach is seriously problematic, because the 90-day limitation is unrealistic for complex antitrust cases.
“The Italian antitrust agency is the only (competitor) agency in Europe subject to this (time) guillotine,” he said in a phone interview. It’s such a tight deadline that it’s almost impossible to respect it.”
Amazon was handed the fine in 2021 by the AGCM for an alleged abuse of a dominant position in the Italian market in favor of adopting its own logistics service by sellers active on Amazon.it.
Amazon said at the time it “strongly disagreed” with the Italian regulator’s decision and would appeal.
Two sources familiar with the situation confirmed that the AGCM was concerned about missing more cases before the State Council for time-related reasons, including the fine imposed on Amazon.
The State Council is the final court of appeal against GCC decisions.
Two other sources said the 90-day rule case is one of the arguments presented by Amazon in its appeal of the €1.1 billion fine, which is currently being heard by a lower-level regional administrative court.
European Union participation
The European Commission said in a statement to Reuters that it was “aware of recent developments in the case law of Italian courts and the concerns raised by the Italian Competition Authority”.
Commission spokeswoman Ariana Podesta said the EU executive was “in contact with the Italian authorities”, but refused to confirm that it had sent a letter to Rome within the framework of procedures that could lead to EU breach proceedings.
If legal action is needed in the EU to settle the case, Ennis said, it would be a “worst-case scenario” for Italy, as it would take time and could lead to potential fines.
Alternatively, the government could pass a law to close the loophole, or Italian administrative judges could seek an opinion from the European Court of Justice.
Anis believes any EU legal action will be based on the 2019 EU directive on the privileges of national competition authorities.
Podesta cited it in its statement, indicating that it is relevant.
It was crucial, she said, that national competition authorities had enough time to conduct all necessary investigations into complex cases.
“It is also important that national competition authorities are able to prioritize certain cases and deprioritize others,” she added.
The AGCM, the Council of State and Amazon Italia declined to comment.
© Thomson Reuters 2023