A legal expert and two sources told Reuters that Italy’s competition watchdog AGCM is aiming to narrow a legal loophole that has allowed multiple corporations to avoid antitrust fines and may help Amazon (AMZN.O) in an appeal.
The U.S. e-commerce business is fighting a record 1.1-billion-euro ($1.2 billion) sentence in Italy before local administrative courts, and the European Commission is closely monitoring the situation.
A 1981 legislation, recently applied to antitrust cases in Italy, requires the AGCM to notify enterprises targeted by its investigations within 90 days of discovering potential anti-competitive behavior.
Over the previous three years, Italy’s top administrative court, the Council of State, has utilized the statute to overturn multiple antitrust penalties for failing to fulfill that deadline.
Law scholar Michele Ainis, an AGCM board member until March, told Reuters that the Council of State’s approach was gravely flawed because the 90-day deadline is unsustainable for complicated antitrust matters.
“The Italian antitrust is the only (competition) agency in Europe subject to this (time) guillotine,” he added in a phone interview. “It is such a tight deadline that it is almost impossible to respect.”
The AGCM fined Amazon in 2021 for allegedly abusing its market dominance in Italy to encourage vendors to utilize its logistics service.
Amazon “strongly disagreed” with the Italian regulator’s ruling and appealed. Two individuals said the AGCM was worried about losing further Council of State lawsuits on time limitation grounds, including the Amazon punishment.
The Council of State is the last AGCM appeals court.
Two other sources said Amazon had raised the 90-day rule in its appeal of the 1.1-billion-euro fine before a lower-level regional administrative court.
The European Commission told Reuters it was “aware of the recent developments in the case-law of the Italian courts and of the concerns raised by the Italian competition authority.”
Commission spokeswoman Arianna Podesta said the EU executive “is in contact with Italian authorities.” Still, she declined to acknowledge it has written a letter to Rome as part of procedures that might lead to an EU infringement case.
Ainis called EU legal processes “the worst scenario” for Italy because they take time and could result in fines. The government might close the loophole via a statute, or Italian administrative judges could consult the EU Court of Justice.
Ainis expected a 2019 EU directive on national competition agencies would underpin any EU legal action. Podesta mentioned it in her statement, implying relevance.
She said national competition authorities needed time to investigate complex issues. “It is also important that national competition authorities can prioritise certain cases and deprioritise others,” she added. Amazon Italy, AGCM, and the Council of State rejected the comment.
