Provisional text
OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 5 September 2024 (1)
Case C‑510/23
Trenitalia SpA
v
Autorità Garante della Concorrenza e del Mercato
interested party:
Federconsumatori
Case C‑511/23
Caronte & Tourist SpA
v
Autorità Garante della Concorrenza e del Mercato
interested parties:
Unione nazionale consumatori - Comitato regionale della Sicilia,
Unione nazionale consumatori,
Assarmatori,
Confederazione Italiana Armatori
(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy)
( Reference for a preliminary ruling – Consumer protection – Directive 2005/29/EC – Unfair business-to-consumer commercial practices in the internal market – Competition – Article 102 TFEU – Abuse of a dominant position – Empowering national competition authorities to enforce the rules on competition – Directive (EU) 2019/1 – National procedures for establishing infringements in the field of consumer law – Pre-investigation stage – Observance of a reasonable time limit – National legislation under which an investigation procedure must be initiated within a period of 90 days – Annulment of the penalty decision in the event of failure to observe that time limit – Principle of effectiveness – Principle of legal certainty – Rights of the defence )
I. Introduction
1. The present requests for a preliminary ruling, submitted by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) pursuant to Article 267 TFEU, concern the interpretation of European Union legislation in the fields of consumer protection and competition. In Case C‑510/23, the referring court seeks an interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’). (2) In Case C‑511/23, the referring court asks the Court of Justice for a ruling on the interpretation of Article 102 TFEU, read in the light of the principles of the protection of competition and the effectiveness of administrative action.
2. These requests were submitted in the context of two disputes between two companies and the Autorità Garante della Concorrenza e del Mercato (the Italian competition authority; ‘the AGCM’) concerning penalties imposed on them on account of an unfair commercial practice and an abuse of a dominant position. Those companies challenge the AGCM’s penalty decisions on the ground that the authority adopted them after the expiry of the 90-day time limit provided for by national legislation. The legislation in question provides that, if that time limit is not observed, the AGCM may no longer exercise its powers to establish or prohibit infringements and to impose penalties. That, according to the referring court, is liable to have an adverse effect on the manner in which that public authority operates. The referring court wishes, essentially, to obtain clarification about the requirements which EU law sets for national regulatory frameworks governing the powers of authorities responsible for ensuring the observance of the internal market rules in the fields mentioned.
II. Legal framework
A. European Union law
1. The rules on consumer protection
(a) Directive 2005/29
3. Article 1 of Directive 2005/29, entitled ‘Purpose’ provides:
‘The purpose of this directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.’
4. Article 11 of that directive, entitled ‘Enforcement’, provides:
‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this directive in the interest of consumers.
Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:
(a) take legal action against such unfair commercial practices,
and/or
(b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.
…
2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:
(a) to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices;
or
(b) if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,
even without proof of actual loss or damage or of intention or negligence on the part of the trader.
…’
5. Article 13 of that directive, entitled ‘Penalties’, provides:
‘Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive.’
(b) Regulation (EU) 2017/2394
6. Article 1 of Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004, (3) which is entitled ‘Subject matter’, provides:
‘This Regulation lays down the conditions under which competent authorities, having been designated by their Member States as responsible for the enforcement of [European] Union laws that protect consumers’ interests, cooperate and coordinate actions with each other and with the Commission, in order to enforce compliance with those laws and to ensure the smooth functioning of the internal market, and in order to enhance the protection of consumers’ economic interests.’
7. Article 2 of this regulation, entitled ‘Scope’ reads as follows:
‘1. This Regulation applies to intra-Union infringements, widespread infringements and widespread infringements with a Union dimension, even if those infringements have ceased before enforcement starts or is completed.
…’
8. Article 12 of the same regulation, entitled ‘Requests for enforcement measures’, provides:
‘1. At the request of an applicant authority, a requested authority shall take all necessary and proportionate enforcement measures to bring about the cessation or prohibition of the intra-Union infringement by exercising the powers set out in Article 9 and any additional powers granted to it under national law. The requested authority shall determine the appropriate enforcement measures needed to bring about the cessation or prohibition of the intra-Union infringement and shall take them without delay and not later than 6 months after receiving the request, unless it provides specific reasons for extending that period. Where appropriate, the requested authority shall impose penalties, such as fines or periodic penalty payments, on the trader responsible for the intra-Union infringement. …
2. The requested authority shall regularly inform the applicant authority about the steps and measures taken and the steps and measures that it intends to take. The requested authority shall use the electronic database provided for in Article 35 to notify without delay the applicant authority, the competent authorities of other Member States and the Commission of the measures taken and the effect of those measures on the intra-Union infringement, including the following:
(a) whether interim measures have been imposed;
(b) whether the infringement has ceased;
(c) which measures have been adopted, and whether those measures have been implemented;
(d) the extent to which consumers affected by the alleged infringement have been offered remedial commitments.’
9. Article 17 of Regulation 2017/2394, entitled ‘Launch of coordinated action and designation of the coordinator’, is worded as follows:
‘1. Where there is a reasonable suspicion of a widespread infringement, the competent authorities concerned by that infringement shall launch a coordinated action which shall be based on an agreement between them. The launch of the coordinated action shall be notified to the single liaison offices concerned by that infringement and to the Commission, without delay.
2. The competent authorities concerned by the suspected widespread infringement shall designate one competent authority concerned by the suspected widespread infringement to be the coordinator. If those competent authorities are unable to reach agreement on that designation, the Commission shall take the role of coordinator.
3. If the Commission has a reasonable suspicion of a widespread infringement with a Union dimension, it shall without delay notify the competent authorities and the single liaison offices concerned by that alleged infringement pursuant to Article 26. The Commission shall state in the notification the grounds which justify a possible coordinated action. The competent authorities concerned by the alleged widespread infringement with a Union dimension shall conduct appropriate investigations on the basis of information that is available or easily accessible to them. The competent authorities concerned by the alleged widespread infringement with a Union dimension shall notify the results of such investigations to the other competent authorities, the single liaison offices concerned by that infringement and the Commission pursuant to Article 26, within 1 month from the date of the Commission’s notification. Where such investigations reveal that a widespread infringement with a Union dimension might be taking place, the competent authorities concerned by that infringement shall start with the coordinated action and shall take the measures set out in Article 19 as well as, where appropriate, the measures set out in Articles 20 and 21.
…
5. A competent authority shall join the coordinated action, if it becomes apparent during that coordinated action that the competent authority is concerned by the widespread infringement or the widespread infringement with a Union dimension.’
2. The rules on competition
(a) Regulation (EC) No 1/2003
10. Under Article 3 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU], (4) which is entitled ‘Relationship between Articles [101 and 102 TFEU] and national competition laws’:
‘1. … Where the competition authorities of the Member States or national courts apply national competition law to any abuse prohibited by Article [101 TFEU], they shall also apply Article [102 TFEU].
…’
11. Article 5 of that regulation, entitled ‘Powers of the competition authorities of the Member States’, provides that:
‘The competition authorities of the Member States shall have the power to apply Articles [101 and 102 TFEU] in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:
-requiring that an infringement be brought to an end,
-ordering interim measures,
-accepting commitments,
-imposing fines, periodic penalty payments or any other penalty provided for in their national law.
Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.’
12. Under Article 11 of that regulation, entitled ‘Cooperation between the Commission and the competition authorities of the Member States’:
‘1. The Commission and the competition authorities of the Member States shall apply the [EU] competition rules in close cooperation.
…
6. The initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles [101 and 102 TFEU]. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.’
13. Article 9 of the same regulation, entitled ‘Commitments’, provides as follows:
‘1. Where the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may by decision make those commitments binding on the undertakings. …
…’
14. Article 22 of Regulation No 1/2003, entitled ‘Investigations by competition authorities of Member States’, provides as follows:
‘1. The competition authority of a Member State may in its own territory carry out any inspection or other fact-finding measure under its national law on behalf and for the account of the competition authority of another Member State in order to establish whether there has been an infringement of Article [101 or 102 TFEU]. …
2. At the request of the Commission, the competition authorities of the Member States shall undertake the inspections which the Commission considers to be necessary under Article 20(1) or which it has ordered by decision pursuant to Article 20(4). The officials of the competition authorities of the Member States who are responsible for conducting these inspections as well as those authorised or appointed by them shall exercise their powers in accordance with their national law.
If so requested by the Commission or by the competition authority of the Member State in whose territory the inspection is to be conducted, officials and other accompanying persons authorised by the Commission may assist the officials of the authority concerned.’
15. Under Articles 23 and 24 of that regulation, the Commission has power to impose on undertakings and associations of undertakings fines and periodic penalty payments.
16. Article 25 of that regulation, entitled ‘Limitation periods for the imposition of penalties’, provides as follows:
‘1. The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:
(a) three years in the case of infringements of provisions concerning requests for information or the conduct of inspections;
(b) five years in the case of all other infringements.
2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.
…’
17. Article 26 of the same regulation, entitled ‘Limitation period for the enforcement of penalties’, provides that:
‘1. The power of the Commission to enforce decisions taken pursuant to Articles 23 and 24 shall be subject to a limitation period of five years.
2. Time shall begin to run on the day on which the decision becomes final.
…’
18. Article 35 of Regulation No 1/2003, entitled ‘Designation of competition authorities of Member States’, provides, in paragraph 1 thereof, that:
‘The Member States shall designate the competition authority or authorities responsible for the application of Articles [101 and 102 TFEU] in such a way that the provisions of this regulation are effectively complied with. …’
(b) Directive (EU) 2019/1
19. Article 1 of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, (5) which is entitled ‘Subject matter and scope’, provides as follows:
‘…
2. This Directive covers the application of Articles 101 and 102 TFEU and the parallel application of national competition law to the same case. …
3. This Directive sets out certain rules on mutual assistance to safeguard the smooth functioning of the internal market and the smooth functioning of the system of close cooperation within the European Competition Network.’
20. Article 3 of this directive, entitled ‘Safeguards’, provides as follows:
‘1. Proceedings concerning infringements of Article 101 or 102 TFEU, including the exercise of the powers referred to in this directive by national competition authorities, shall comply with general principles of [European] Union law and the Charter of Fundamental Rights of the European Union.
2. Member States shall ensure that the exercise of the powers referred to in paragraph 1 is subject to appropriate safeguards in respect of the undertakings’ rights of defence, including the right to be heard and the right to an effective remedy before a tribunal.
3. Member States shall ensure that enforcement proceedings of national competition authorities are conducted within a reasonable timeframe. Member States shall ensure that, prior to taking a decision pursuant to Article 10 of this directive, national competition authorities adopt a statement of objections.’
21. Article 4 of that directive, entitled ‘Independence’, provides as follows:
‘1. To guarantee the independence of national administrative competition authorities when applying Articles 101 and 102 TFEU, Member States shall ensure that such authorities perform their duties and exercise their powers impartially and in the interests of the effective and uniform application of those provisions, subject to proportionate accountability requirements and without prejudice to close cooperation between competition authorities in the European Competition Network.
…
5. National administrative competition authorities shall have the power to set their priorities for carrying out the tasks for the application of Articles 101 and 102 TFEU as referred to in Article 5(2) of this directive. To the extent that national administrative competition authorities are obliged to consider formal complaints, those authorities shall have the power to reject such complaints on the grounds that they do not consider such complaints to be an enforcement priority. This is without prejudice to the power of national administrative competition authorities to reject complaints on other grounds defined by national law.’
22. Article 5 of Directive 2019/1, entitled ‘Resources’, provides as follows:
‘1. Member States shall ensure at a minimum that national competition authorities have a sufficient number of qualified staff and sufficient financial, technical and technological resources that are necessary for the effective performance of their duties, and for the effective exercise of their powers for the application of Articles 101 and 102 TFEU as set out in paragraph 2 of this article.
2. For the purposes of paragraph 1 national competition authorities shall be able, at a minimum, to conduct investigations with a view to applying Articles 101 and 102 TFEU, to adopt decisions applying those provisions on the basis of Article 5 of Regulation … No 1/2003; and to cooperate closely in the European Competition Network with a view to ensuring the effective and uniform application of Articles 101 and 102 TFEU. …
…’
23. Articles 10, 12, 13 and 16 of Directive 2019/1 govern the powers of national competition authorities in connection, respectively, with the finding and termination of infringements, commitments offered by undertakings or associations of undertakings, the imposition of fines on undertakings and associations of undertakings, and periodic penalty payments.
24. In accordance with Article 36 thereof, Directive 2019/1 entered into force on 3 February 2019. Under Article 34(1) of that directive, the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 4 February 2021.
B. Italian law
1. Law No 689/81
25. Legge 24 novembre 1981, n. 689 – Modifiche al sistema penale (Law No 689 of 24 November 1981 amending the criminal justice system; ‘Law No 689/81’) defines the general scheme governing administrative fines.
26. Article 12 of that law, entitled ‘Scope’, provides as follows:
‘The provisions of this chapter shall be complied with, in so far as they are applicable and unless otherwise provided, in respect of all infringements and offences for which an administrative penalty requiring the payment of a sum of money is provided for, including where such penalty is not provided for as a substitute for a criminal penalty. The provisions of this chapter shall not apply to disciplinary offences.’
27. Article 14 of the law, entitled ‘Statement of objections and notification’, provides as follows:
‘Wherever possible, the infringement or offence shall be communicated immediately both to the offender and to any person jointly and severally liable for payment of the sum owed on account of the infringement or offence.
In the event that immediate communication is not given to any or all of the persons mentioned in the preceding paragraph, the constituent elements of the infringement or offence shall be notified to the parties concerned within a period of 90 days, where those parties are resident in the territory of the Italian Republic, or within a period of 360 days, where they are resident abroad, beginning on the date on which the infringement or offence is established.
Where the documents relating to the infringement or offence are sent to the competent authority by order of the court, the periods mentioned in the preceding paragraph shall commence on the date of their receipt.
…
The obligation to pay the sum owed on account of the infringement or offence shall not apply to any person who has not been notified within the prescribed period.’
28. Article 28 of Law No 689/81, entitled ‘Limitation period’, provides as follows:
‘The right to recover sums owed on account of infringements and offences referred to in this law shall be time-barred five years after the date on which the infringement or offence was committed. Interruption of the limitation period shall be governed by the provisions of the Civil Code.’
2. The rules on consumer protection
(a) The Consumer Code
29. Article 1 of Decreto legislativo 6 settembre 2005, n. 206 – Codice del consumo (Legislative Decree No 206 of 6 September 2005 on the Consumer Code), in the version applicable to the dispute in the main proceedings (‘the Consumer Code’), provides, in paragraph 1 thereof, as follows:
‘In accordance with the Constitution and the principles set out in the Treaties establishing the European Communities, the Treaty on European Union, European Union legislation, and in particular Article 153 [EC], as well as in international treaties, this Code harmonises and reorganises the rules governing the purchasing process and the consumption process, in order to ensure a high level of protection of consumers and users.’
30. Article 27 of the Consumer Code, entitled ‘Administrative and judicial protection’, provides as follows:
‘1. The [AGCM] shall exercise the powers governed by this article, including in its capacity as the authority responsible for the implementation of [Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (‘the Regulation on consumer protection cooperation’ (OJ 2004 L 364, p. 1)), subject to the limits set out in applicable legal provisions.
1-bis. Including in regulated sectors, and in accordance with Article 19(3), competence to take action in relation to conduct on the part of traders that constitutes an unfair commercial practice shall, without prejudice to compliance with the legislation in force, lie exclusively with the [AGCM], which shall exercise that competence on the basis of the powers referred to in the present article, after taking the opinion of the competent regulatory authority. …
2. The [AGCM] shall, of its own initiative or at the request of an interested person or organisation, prohibit the continuation of unfair commercial practices and shall undo the effects thereof. To that end, the [AGCM] shall use its investigative and enforcement powers under Regulation [No 2006/2004], including in connection with infringements or offences having no cross-border dimension. In carrying out the tasks referred to in paragraph 1, the [AGCM] may call upon the Guardia di finanza, which shall use the powers conferred on it for the purposes of checking value added tax and income tax. The [AGCM] may act whether or not the consumers concerned are in the territory of the Member State in which the trader is established or in another Member State.
3. Where there is particular urgency, the [AGCM] may, by reasoned decision, order the temporary cessation of unfair commercial practices. It shall, in any event, inform the trader of the initiation of the investigation …
…
8. If the [AGCM] considers a commercial practice to be unfair, it shall prohibit its being put into practice, if it has not yet been brought to the public’s attention, or prohibit its continuation, if the practice has already been put into effect. It may, by the same decision, order the trader to publish, at its own expense, the decision, or a summary thereof, or to publish an appropriate statement of rectification, so as to prevent the unfair commercial practice from continuing to produce effects.
9. In its decision prohibiting an unfair commercial practice, the [AGCM] shall also impose an administrative fine of between EUR 5 000 and EUR 5 000 000, having regard to the severity and duration of the infringement or offence. In the case of unfair commercial practices within the meaning of Article 21(3) and (4), the fine shall not be less than EUR 50 000.
…
11. The [AGCM] shall, in its rules of procedure, lay down the investigation procedure and do so in such a manner as to ensure the inter partes nature of the procedure, the provision of full information and the taking of proper minutes.
…
13. In the case of administrative fines resulting from infringements of this decree, the provisions of Chapter I, Section I, and of Articles 26, 27, 28 and 29 of Law [No 689/81], as amended, shall be observed in so far as they are applicable. The administrative fines referred to in this article shall be paid within 30 days of notification of the [AGCM’s] decision.
…’
(b) The regulation on investigation procedures in the field of consumer protection
31. The Regolamento sulle procedure istruttorie in materia di pubblicità ingannevole e comparativa, pratiche commerciali scorrette, violazione dei diritti dei consumatori nei contratti, violazione del divieto di discriminazioni e clausole vessatorie (regulation on investigation procedures in the field of consumer protection) was approved by Delibera 1 aprile 2015 n. 25411 of the AGCM (Resolution No 25411 of the AGCM of 1 April 2015), which was adopted pursuant to Article 27(11) of the Consumer Code.
32. Under Article 6(1) and Article 5(1)(f) and (2) of that regulation, the investigation procedure must be initiated, with a notice of investigation among other things, within a period of 180 days of receipt of a request to take action, which period will be interrupted in the event that a request for information is made. In the event that an investigation procedure is not initiated within the prescribed period, the pre-investigation stage is deemed closed with no need to adjudicate, the AGCM retaining the option to place on the file the request for it to take action with a view to carrying out an in-depth investigation of its own initiative on the basis of new evidence or a different assessment of its priorities for action.
33. Articles 10 to 12 of that regulation define the procedural safeguards at the investigation stage, which include the possibility for the parties that have been notified of the initiation of the investigation and any other parties concerned, in accordance with Article 10 of the same regulation, to participate in the investigation and to submit observations, to have access to the documents and information held by the AGCM and to request hearings.
3. The rules on competition
(a) Law No 287/90
34. Article 1 of Legge 10 ottobre 1990, n. 287 – Norme per la tutela della concorrenza e del mercato (Law No 287 of 10 October 1990 on the rules for the protection of competition and markets), in the version applicable to the dispute in the main proceedings, (‘Law No 287/90’), which is entitled ‘Scope and relationship with [European Union] law’, provides as follows:
‘1. The provisions of this law, which is enacted under Article 41 of the Constitution for the purposes of protecting and guaranteeing the right of economic initiative, shall apply to cartels, abuses of a dominant position and concentrations of undertakings.
2. The [AGCM] shall also apply in parallel in relation to the same case Articles 101 and 102 [TFEU] and Articles 2 and 3 of this law on agreements restricting free competition and abuses of a dominant position.
…
4. The provisions in this Title shall be interpreted in accordance with the principles laid down in the competition law of the European [Union].’
35. Article 3 of this law, entitled ‘Abuse of a dominant position’, provides as follows:
‘1. Abuse by one or more undertakings of a dominant position within the national market or a substantial part of it is prohibited; the following are also prohibited:
(a) directly or indirectly imposing purchase or selling prices or other contractual conditions that are unjustifiably onerous;
…’
36. Article 12 of the law, entitled ‘Investigatory powers’, provides as follows:
‘1. After assessing the information already in its possession and any information brought to its attention by public authorities or by any interested party, including consumer representation associations, the [AGCM] shall carry out investigations in order to determine whether any of the prohibitions laid down in Articles 2 and 3 have been breached.’
…’
37. Article 14 of the same law, entitled ‘Investigations’, provides as follows:
‘1. In the event of a suspected infringement of Article 2 or Article 3, the [AGCM] shall notify the undertakings and entities concerned of the initiation of an investigation …
…’
38. Article 15 of Law No 287/90, entitled ‘Formal notices and fines’, provides as follows:
‘1. If, following an investigation as referred to in Article 14, the [AGCM] discovers infringements of Article 2 or Article 3, it shall inform the undertakings and entities concerned of the period within which they must bring the infringements to an end. In the case of serious infringements, having regard to the severity and duration of the infringement, it shall also impose an administrative fine of up to 10% percent of the turnover achieved by each undertaking or entity in the financial year preceding the service of formal notice and shall determine the period within which the undertaking must pay the fine.
…’
39. Article 31 of that law, entitled ‘Fines’, provides as follows:
‘1. In the case of administrative fines resulting from the infringement of this law, the provisions of Title I, Sections I and II of Law [No 689/81] shall be observed in so far as they are applicable.’
(b) The regulation on investigation procedures within the competence of the AGCM
40. The Decreto del Presidente della Repubblica 30 aprile 1998, n. 217 – Regolamento recante norme in materia di procedure istruttorie di competenza dell’Autorità Garante della Concorrenza e del Mercato (Decree of the President of the Republic No 217 of 30 April 1998 – Rules governing investigation procedures within the competence of the AGCM) was adopted to implement Article 10(5) of Law No 287/90, which provides that ‘investigation procedures shall be established that ensure for interested parties the full provision of information, the inter partes nature of the proceedings and the taking of proper minutes’.
41. Articles 7, 13 and 14 of that regulation set out the procedural safeguards which apply during the investigation stage, which are, for the parties notified of the initiation of the investigation and for other interested parties under Article 7(2) of that regulation, the possibility of participating in the investigation and submitting observations, access to the documents and information in the AGCM’s possession and the possibility of requesting that a hearing be held before the results of the investigation are released.
III. The facts giving rise to the disputes, the main proceedings and the questions referred for a preliminary ruling
A. Case C‑510/23 (Trenitalia)
42. Trenitalia, a public company wholly owned, through the intermediary of another company, by the Ministero dell’economia e delle finanze (Ministry of the Economy and Finance, Italy) is the principal rail passenger transport management company operating in Italy. It provides both regional services and medium and long-distance services, the latter including so-called treni a mercato (profit-making lines), in particular, high-speed rail services.
43. Between 2011 and 2016, the AGCM received a number of reports and complaints from consumers, from the Autorità di regolazione dei trasporti (Transport Regulatory Authority, Italy) and from the consumer association Federconsumatori, concerning the online sale of train tickets. On 21 October 2016, the AGCM placed on file the results of ticket purchase simulations carried out by its officials between 26 August and 30 September 2016.
44. On 15 November 2016, the AGCM notified Trenitalia of its decision to initiate a procedure to establish an infringement of consumer law and carried out an inspection at the company’s headquarters in the course of which it seized documents. Trenitalia’s advisers were given the opportunity to consult the investigation file and to put forward arguments in defence. The company that had supplied the computer system which Trenitalia used was also the subject of an inspection.
45. By a decision adopted on 19 July 2017 and notified on 3 August 2017, the AGCM found that Trenitalia had employed an unfair commercial practice in the online sale of train tickets. The travel solutions proposed by the online site which Trenitalia was using to provide information about tickets and to enable searches and ticket purchases to be carried out mainly involved the use of high-speed profit-making lines, and omitted solutions for similar dates and times that involved the use of much less expensive regional trains. Consequently, the AGCM ordered Trenitalia to cease that practice, granted it a period of time in which to identify the measures required to do so and, having regard to the severity and duration of the infringement, imposed a fine of EUR 5 million on it.
46. Before the referring court, Trenitalia contests the AGCM’s decision, arguing in particular that the AGCM had failed to observe the 90-day time limit provided for by Article 14 of Law No 689/81 for initiating a procedure to establish an infringement of consumer law. Indeed, the stage preceding the communication of the statement of objections had lasted more than four years.
47. The referring court observes in this connection that the penalties imposed by the AGCM, in respect of infringements of both competition law and consumer protection law, are of a ‘quasi-criminal’ nature. (6) Consequently, in order to ensure equality of arms and that the lapse of time should not be prejudicial to the party accused, it is necessary to observe the principles laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and in Article 41 of the Charter of Fundamental Rights of the European Union, which require that accusations be notified promptly.
48. According to the case-law of the Consiglio di Stato (Council of State, Italy), which has recently shifted in this direction, the AGCM must, if it is not to lose its power to impose penalties, initiate the investigation procedure by communicating a statement of objections within a period of 90 days after it has finished gathering the facts which it needs in order to allege the unlawful conduct.
49. In order to determine the starting point of that 90-day period, an administrative court must make a retrospective assessment, placing itself in the position the AGCM was in, and determine the date on which the information then available was sufficient in order for it to formulate a statement of objections. Any failure to comply with that time limit will entail the annulment of the AGCM’s decision in its entirety. Moreover, in accordance with the principle ne bis in idem, it will no longer be possible to initiate a new procedure to investigate the practice, even if the undertaking concerned has not brought it to an end.
50. According to the referring court, those factors undermine the AGCM’s autonomy, obliging it to initiate investigations on the basis of a purely chronological criterion. In addition, initiating investigations prematurely would increase the risk of the AGCM’s being unable to obtain the information it needs in order to establish the infringement complained of. It is important to bear in mind the great complexity of the AGCM’s work, particularly in investigations into the activities of major economic players, in that it will have to gather information on a great number of matters over a continuous period in order to arrive at an abstract legal characterisation.
51. In this context, the referring court draws a parallel with penalties adopted in competition matters, wherein the competent authority is required to conclude infringement proceedings within a reasonable period of time. Such a requirement applies, by analogy, also in the field of consumer protection.
52. Furthermore, since the undertaking concerned does not need to establish that any loss has arisen as a result of the late initiation of the investigation procedure, an irrebuttable presumption arises that the undertaking’s rights of defence are infringed in the event that the procedure is initiated after the 90-day time limit has passed.
53. In any event, the application of a time limit the starting point for which may vary from case to case is not liable to afford appropriate protection of the legitimate expectations of undertakings that are penalised. In order to ensure that statements of objections are not notified after too long a lapse of time, Italian law provides for a five-year limitation period, which begins to run from when the unlawful conduct ceases.
54. It was in those circumstances that the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 11 of Directive [2005/29], read in the light of the principles of consumer protection and the effectiveness of administrative action, be interpreted as meaning that it precludes national legislation, such as that arising from the application of Article 14 of [Law No 689/81] – as interpreted in the most recent case-law – which requires the [AGCM] to initiate the investigation procedure with a view to establishing an improper (unfair) commercial practice within a time limit of 90 days, starting from the moment the [AGCM] has knowledge of the essential elements of the infringement, [which could be no more than those set out in] the first report of the infringement?’
B. Case C‑511/23 (Caronte & Tourist)
55. Caronte & Tourist (‘C&T’) is a company that provides a ferry service in the Strait of Messina, where it holds a quasi-monopolistic position.
56. On 24 March 2018, the AGCM received a report from a consumer complaining about the excessively high prices of the ferry service provided by C&T and requesting the initiation of an investigation. Subsequently, on 23 April 2019, the AGCM sent a request for information to the port authority of Messina, which, on 19 November 2019, it followed up with a reminder, to which the port authority replied on 26 November 2019.
57. On 4 August 2020, the AGCM notified C&T of its decision to initiate a procedure with a view to establishing an infringement of competition law.
58. By decision adopted on 29 March 2022 and notified on 11 April 2022, the AGCM found, on the basis of Article 3 of Law No 287/90, that there had been an abuse of a dominant position by C&T, in that it had charged excessive prices for ferrying vehicles across the Strait of Messina. Consequently, the AGCM ordered C&T to refrain from charging excessive prices in the future, or at least from the time the pandemic emergency came to an end and, in view of the gravity of the infringement, it imposed a fine of EUR 3 719 370 on C&T.
59. Before the referring court, C&T, supported by Assarmatori and Confederazione Italiana Armatori (‘Confitarma’), which are trade associations in the maritime sector, challenges the AGCM’s decision, arguing, in particular, that the AGCM had failed to observe the 90-day time limit provided for by Article 14 of Law No 689/81 for initiating a procedure to establish an infringement of competition law. Indeed, the stage preceding the communication of the statement of objections had lasted 855 days in all.
60. The referring court observes that, even though the case in the main proceedings concerns an abuse of a dominant position that is confined to the national market, the European Union has a genuine interest in the uniform application of provisions aimed at preventing anticompetitive practices. Given that, according to the case-law of the Court of Justice, the Commission is under an obligation to conclude its procedures within a reasonable time, (7) there is a disparity between national rules and European Union rules governing the initiation of procedures in competition matters.
61. The referring court also observes that the penalties imposed by the AGCM in competition matters are of a ‘quasi-criminal’ nature. Consequently, in order to ensure equality of arms and that the lapse of time should not be prejudicial to the party accused, it is necessary to observe the principles laid down in Article 6 ECHR and in Article 41 of the Charter, which require that accusations be notified promptly.
62. The referring court explains that, according to older case-law of the Consiglio di Stato (Council of State), Article 14 of Law No 689/81 did not apply to procedures conducted by the AGCM in relation to competition matters, such that the initiation of an investigation by means of the notification of a statement of objections was not subject to any specific time limit. However, following a change in that case-law, the AGCM is now required, if it is not to lose its power to impose sanctions, to initiate the investigation procedure by communicating a statement of objections within the time limit at issue once it has finished gathering the facts it needs in order to allege the unlawful conduct.
63. The referring court explains the consequences of the change in the case-law just described, which are that an administrative court will have to make a retrospective assessment in order to determine the precise staring point of the 90-day period, that the AGCM’s decision will be annulled if it fails to observe the time limit at issue, and that the principle ne bis in idem will apply, preventing the initiation of any new procedure to investigate the same practice.
64. The other statements which the referring court makes, expressing its doubts as to the consistency of the national rules with European Union competition law, are essentially the same as those set out above in relation to Case C‑510/23 concerning consumer protection law.
65. It was in those circumstances that the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 102 TFEU, read in the light of the principles of the protection of competition and the effectiveness of administrative action, be interpreted as meaning that it precludes national legislation, such as that arising from the application of Article 14 of [Law No 689/81] – as interpreted in the most recent case-law – which requires the [AGCM] to initiate the investigation procedure with a view to establishing an abuse of a dominant position within a time limit of 90 days, starting from the moment the [AGCM] has knowledge of the essential elements of the infringement, [which could be no more than those set out in] the first report of the infringement?’
IV. The procedures before the Court of Justice
66. The orders for reference in Cases C‑510/23 and C‑511/23, dated 2 August 2023 and 1 August 2023 respectively, were received at the Registry of the Court on 8 August 2023.
67. In Case C‑510/23, the parties to the main proceedings, the Italian Government and the European Commission submitted written observations within the period prescribed by Article 23 of the Statute of the Court of Justice of the European Union.
68. In Case C‑511/23, written observations were submitted by the parties to the main proceedings, Assarmatori, Confitarma, UNC Sicilia, the Greek, Hungarian, Italian and Slovak Governments and the Commission, in accordance with the abovementioned provision.
69. On 14 May 2024, the Court decided to proceed without a hearing, pursuant to Article 76(2) of its Rules of Procedure.
V. Legal Analysis
A. Preliminary observations
70. It is important to clarify at the outset that the present cases do not concern the interpretation of provisions of substantive law, but rather certain rules and principles of EU law that set limits on the procedural autonomy of the Member States. As has often been so in the Court’s case-law, the principle of effectiveness will play a crucial role in the analysis of the questions referred. Given that the national rules at issue are the same in both of these cases, it will be necessary to examine them with reference to the EU rules on consumer protection and to those on competition respectively. As will be seen, some considerations apply equally in both legal fields, as a result of the many links between them. In the end event, it must be borne in mind that the wellbeing of consumers is in fact the ultimate aim of State action to safeguard competition. (8) It is for this reason that the judgment which the Court will deliver will have importance across the board.
71. For the sake of clarity, I should briefly describe the manner in which the AGCM conducts procedures to establish unfair commercial practices and anticompetitive practices. As is apparent from the case files for the two cases, these procedures are essentially conducted in two stages: (1) a pre-investigation stage, during which the AGCM gathers the information it needs in order to formulate a complaint against the party concerned; (2) an investigation stage (or decision-making stage) which commences once a statement of objections has been communicated to the interested party and during which all of the proper safeguards of administrative proceedings apply. That stage is concluded, in appropriate cases, by the adoption of a decision finding the existence of an unfair commercial practice or an anticompetitive practice and imposing a penalty.
72. The referring court considers that the national legislation at issue, which governs the procedures I have just described, defeats the effective application of EU law. In support of that assertion, it points to certain aspects of that legislation which are problematic, in its opinion. One of those aspects is the period of time allowed for the pre-investigation stage. It is clear from the orders for reference that the legislation in question provides, for procedures upon the conclusion of which a penalty may be imposed and which may result in an order for the payment of a sum of money, that the time limit for the communication of a statement of objections is 90 days. According to the case-law of the Consiglio di Stato (Council of State), which is the highest court for administrative matters, that period begins when the AGCM has knowledge of the essential elements of the infringement, which may be no more than the first report of the infringement. The provision in question applies equally to penalty procedures regarding unfair commercial practices and under competition law.
73. Moreover, it is apparent from the case files that the time-bar takes effect by operation of law, regardless of any actual finding that the undertaking’s rights of defence have been infringed. On account of the unicity of the measure, the time-bar will apply to the decision in its entirety, including both the finding made and any prohibition ordered and the imposition of any penalty. Lastly, the time-bar will apply to continuous infringements, even if they have not been brought to an end and, combined with the principle ne bis in idem, will preclude any new finding, even if the infringement is still ongoing after the decision imposing penalties. When considering the consistency with EU law of these rules, it will be necessary to take account of the relationship between all of these aspects.
74. Under the principle of effectiveness, the Member States may not render the implementation of EU law impossible in practice or excessively difficult and, specifically in the area of competition law, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 and 102 TFEU. (9) In particular, the national competition authorities, designated under Article 35(1) of Regulation No 1/2003, must ensure that those articles are applied effectively in the general interest. (10) In that context, it should be noted that secondary law contains provisions which establish the requirement to ensure the effective application of EU law in relation to specific obligations. The same is true in the related field of consumer protection. Given the primacy of application of secondary law, it will be necessary, in my analysis, to identify the relevant provisions of secondary law, as it is on the basis of those provisions that it must be established whether the national rules at issue satisfy the requirement of effectiveness.
B. Admissibility
75. However, it is necessary first to consider whether the reference for a preliminary ruling in Case C‑511/23 is admissible. C&T, Assarmatori and Confitarma submit that it is inadmissible because the infringement C&T is alleged to have committed was a violation of the prohibition on the abuse of a dominant position laid down in Article 3 of Law No 287/90, not in Article 102 TFEU, the AGCM having chosen, in accordance with Regulation No 1/2003, to apply national competition law alone. In addition, Article 14 of Law No 689/81, which stipulates the time limit at issue, is a provision falling within the procedural autonomy of the Member States and is unrelated to substantive competition law.
76. Those arguments do not, however, seem convincing to me, for reasons which I shall now explain.
77. First of all, it is clear from the Court’s case-law that, in a situation where a penalty has been imposed on an economic operator pursuant to national competition law alone, the Court may nevertheless answer a request for a preliminary ruling concerning Article 102 TFEU where that provision has been rendered applicable under national law by means of a reference made in national law to the content of Article 102 TFEU. Where national law must be applied in a manner consistent with Article 102 TFEU, it is, in fact, clearly in the European Union’s interest that that provision should be interpreted uniformly. (11)
78. In the present instance, it is common ground that Article 1(4) of Law No 287/90 states that the provisions of Title I of that law are to be interpreted in accordance with the principles laid down in the competition law of the European Union. In addition, Article 3(1)(a) of the same law, which also falls in Title I thereof, is worded in almost the same terms as point (a) of the second subparagraph of Article 102 TFEU. Moreover, the referring court expressly emphasises that ‘Article 3 of Law [No 287/90] transposes Article 102 TFEU into national law, the two provisions being essentially the same in regulatory scope’. That being so, it seems permissible to me to conclude that the provisions of Title I of Law No 287/90, in regulating purely domestic situations, provide for the same solutions as those which are provided for by EU law, and in particular Article 102 TFEU.
79. Secondly, as regards the provisions of Title I of Law No 287/90 specifically, it must be remembered that the Court has already adopted similar reasoning in the judgment in ETI and Others, (12) finding that it had jurisdiction to adjudicate on a reference for a preliminary ruling concerning Article 81 EC (now Article 101 TFEU) where, in the main proceedings, the AGCM had solely applied the provisions of national law prohibiting cartels. Contrary to what C&T alleges in its observations, I see no reason why the fact that Regulation No 1/2003 has entered into force should alter this assessment in any way, since it is based on a direct and unconditional reference in national law to EU law.
80. Thirdly, the fact that this case concerns not the interpretation of substantive provisions of national competition law contained in Title I of Law No 287/90, but the interpretation of the procedural provision in Article 14 of Law No 689/81, seems to me to have no effect upon the admissibility of the request for a preliminary ruling. Indeed, as the referring court indicates, Article 14 of Law No 689/81 is rendered applicable to administrative fines resulting from the infringement of Law No 287/90 by Article 31(1) of that law. (13) Furthermore, the mere fact that a provision of national law falls within the procedural autonomy of the Member States does not mean that the requirements of EU law do not apply to it: to the extent that such a provision circumscribes the application of provisions of national law that must conform to equivalent provisions of EU law, it must, at the very least, conform to the principles of effectiveness and equivalence.
81. In light of the foregoing, I consider that the application for a preliminary ruling in Case C‑511/23 should be declared admissible.
C. Substance
1. The objectives pursued by the applicable provisions in the fields of competition and consumer protection
82. The obligations upon Member States that are relevant to the present analysis arise from a multitude of provisions. I shall first of all set these out and then consider whether the national rules at issue constitute a correct implementation of those obligations, at which point it will be necessary for me to assess whether the national rules at issue contribute effectively to the attainment of the objectives set by EU law.
(a) The fundamental guarantees and safeguards established by Directive 2019/1 and whether that directive is applicable in Case C‑511/23
83. In so far as competition law is concerned, I would point to the obligations imposed by Directive 2019/1, which, in accordance with Article 1(1), read in conjunction with recitals 1, 6 and 8 thereof, establishes certain fundamental guarantees for the purposes of the application of Articles 101 and 102 TFEU by national competition authorities, aimed at enabling those authorities to be fully effective in enforcing those provisions, in particular, with the aim of ensuring fair and open competitive markets, protecting consumers and undertakings against anticompetitive practices and preventing such practices from escaping penalties. (14)
84. Directive 2019/1 imposes a series of important obligations, such as the obligation to ensure that enforcement proceedings commenced by national competition authorities are conducted within a reasonable timeframe, the obligation to ensure that objections are communicated to undertakings before any decision is taken, under Article 10 of the directive, finding an infringement and ordering its cessation, and the obligation to guarantee the independence of national administrative competition authorities, allowing them the power to set their priorities for carrying out the tasks for the application of Articles 101 and 102 TFEU. These obligations seem to me of particular relevance in Case C‑511/23, for the purpose of assessing the conformity of the national rules with EU competition law.
85. Carrying out that assessment logically presupposes that Directive 2019/1 is applicable in Case C‑511/23. The referring court does not, however, consider that it is, because the directive was not transposed into Italian law until 2021, after the investigation was initiated. It adds that that directive went no further than codifying a ‘general principle of [EU] law’.
86. For my part, I hesitate to say that Directive 2019/1 is of no relevance in such circumstances, given that, according to settled case-law, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. (15) It follows from that obligation to refrain from taking such measures, inter alia, that the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition of a directive has expired, the attainment of the objective pursued by that directive.(16)
87. As may be understood from Article 36 of Directive 2019/1, that directive entered into force on 3 February 2019 and, in accordance with Article 34(1) thereof, the Member States were required to comply with it by 4 February 2021. In the present instance, it is apparent from the case file, first, that the AGCM’s decision to initiate an investigation procedure was adopted on 4 August 2020, which is to say during the period prescribed for the transposition of Directive 2019/1. Secondly, it appears to be common ground that the line of case-law of the Consiglio di Stato (Council of State) according to which the legislation at issue does apply to procedures under Law No 287/90 already existed by the time the investigation procedure was initiated.
88. That being so, I consider that, in order to assess whether the AGCM’s decision to initiate an investigation procedure was adopted out of time, in view of the time limit laid down in Article 14 of Law No 287/90, the referring court will also have to take the provisions of Directive 2019/1 into account. Consequently, the Court will need to inform it of whether and, if so, to what extent the application of that national legislation is liable seriously to compromise the attainment of the objectives pursued by that directive.
(b) The requirements imposed by Directive 2005/29
89. According to Article 1 of Directive 2005/29, the purpose of that directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.
90. While Directive 2005/29 directly protects consumers’ economic interests from unfair business-to-consumer commercial practices, it nevertheless also indirectly protects legitimate businesses from competitors of theirs that do not play by the rules laid down in the directive and it therefore guarantees fair competition in fields coordinated by it, as is made clear in recital 8 of the directive. That underscores the close link between consumer protection law and competition law, to which I have already alluded.
91. In accordance with the first subparagraph of Article 11(1) of Directive 2005/29, the Member States must ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of the directive in the interest of consumers. Article 11(2) provides that the Member States are to confer on administrative authorities powers enabling them, in cases where they deem such measures to be necessary, taking into account all the interests involved and in particular the public interest, to order the cessation of unfair commercial practices.
92. In addition, it is clear from Article 13 of Directive 2005/29 that the Member States must lay down penalties for infringements of national provisions adopted in application of that directive and must take all necessary measures to ensure that they are enforced, such penalties being effective, proportionate and dissuasive. According to the Court, Directive 2005/29 leaves the Member States a margin of discretion as to the choice of national measures intended, in accordance with Articles 11 and 13 of that directive, to combat unfair commercial practices, on condition that they are adequate and effective and that the penalties thus laid down are effective, proportionate and dissuasive. (17)
93. Even though the referring court has not expressly included Article 13 of Directive 2005/29 in its request for an interpretative ruling, I think it necessary for that provision also to be taken into account in the analysis, since the present cases concern the AGCM’s power to impose penalties for infringements. Indeed, the subject of the proceedings brought by Trenitalia and C&T is the fines that were imposed on them. It is important to point out in this connection that penalties, including fines, are among the tools often used in combatting infringements of EU law, whatever the field concerned. (18) Therefore, in order to provide the referring court with an answer that will be of use to it and enable it to decide the cases before it, the Court will need to draw its attention to the relevance of this provision. (19)
2. The aspects of the national rules that are liable to compromise the effectiveness of EU law
94. Having outlined the obligations imposed by EU law, it is appropriate now to consider whether and, if so, to what extent the national rules are liable to frustrate the objectives pursued by the EU legislature. To that end, it is necessary to carry out a systematic analysis, breaking the rules down into their various components, and to evaluate them each individually and then as a whole.
95. My analysis will focus on a series of aspects of the rules that seem to me problematic from a legal viewpoint, these being the brevity of the period of time allowed for completing the pre-investigation stage, the uncertainty regarding the starting point of that period, the legal consequences of failure to initiate a formal procedure within the time limit, and the application of the principle ne bis in idem. My analysis will demonstrate that each aspect is in itself liable to compromise the effectiveness of EU law. Taken together, they seriously undermine the work of the AGCM as the national authority responsible for finding and penalising infringements in the fields of consumer law and competition law.
96. That said, it must be recalled that, in accordance with the Court’s settled case-law, in the context of the procedure provided for in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter does not have jurisdiction to interpret national law and only the national courts may establish and assess the facts of the dispute in the main proceedings. (20) However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable the national court to determine whether the national rules are compatible with EU law. (21)
(a) The brevity of the period of time allowed for completing the pre-investigation stage
97. The most striking aspect of the national rules at issue seems to me to be the 90-day time limit which they impose on the AGCM for completing the pre-investigation stage. This time limit is problematic not only because it is so short, but also because it is rigid, being applicable in every instance, regardless of the complexity of the case and the AGCM’s workload.
98. I would immediately note in this connection that none of the secondary legislation I have mentioned provides for such a time limit. Yet it must also be borne in mind that, in the decentralised system for the application of the rules of EU competition law, in which national competition authorities directly apply those rules, the determination of the limitation rules for the imposition of penalties by those authorities is a matter for the Member States, subject to compliance with the principles of equivalence and effectiveness. Accordingly, no legal requirements for the Member States may be inferred from Articles 25 and 26 of Regulation No 1/2003, which prescribe the limitation periods that circumscribe the Commission’s power to impose and enforce penalties in the form of fines or periodic penalty payments. Indeed, the Court has already held that those time limits do not, in principle, apply to national competition authorities, which are instead subject to national rules on limitation. (22)
99. Moreover, the Court has held that, in the absence of binding EU regulations, it is for Member States to establish and apply, in accordance with EU law, and in particular the principles of equivalence and effectiveness, the procedural rules governing the imposition of penalties by the competent national authorities. (23) It is also clear from the case-law that such rules must be established and applied in accordance with EU law, which requires that reasonable time limits be laid down which protect both the parties concerned and the authorities concerned. (24)
100. As regards, more specifically, procedural time limits applying to action undertaken by national competition authorities, it must be recalled that, where a Member State is implementing EU competition law, the requirements resulting from the principle of sound administration, as a general principle of EU law, and in particular the right of any person to have his or her affairs handled impartially and within a reasonable period of time, are applicable in procedures conducted by competent national authorities. (25) That particular requirement also flows from Article 3(3) of Directive 2019/1, which sets out some of the fundamental safeguards that I have already mentioned. (26)
101. The Court has thus held that national rules laying down limitation periods must be devised in such a way as to strike a balance between, on the one hand, the objectives of providing legal certainty and ensuring that cases are dealt with within a reasonable time as general principles of EU law and, on the other, the effective and efficient application of Articles 101 and 102 TFEU, in order to safeguard the public interest in preventing the operation of the internal market from being distorted by agreements or practices harmful to competition. (27) According to the Court, in order to determine whether national rules on limitation strike such a balance, all elements of those rules must be taken into consideration, which may include, among other things, the time from which the limitation period begins to run, the duration of that period and the rules for suspending or interrupting it. (28) It seems to me appropriate to apply those case-law principles, mutatis mutandis, to the present cases.
102. As regards the brevity of the period of time allowed under the national rules in question, as the Court has emphasised, that must be assessed taking into consideration the specific features of competition law cases and, in particular, the fact that such cases require, in principle, a complex factual and economic analysis to be carried out. (29) Indeed, as the Commission explains in its written observations, before adopting a decision to initiate the procedure, which will involve intensive inter partes inquiries with the undertakings concerned, as well as the use of significant resources, a competition authority will have to carry out complex analyses of both a factual and an economic nature.
103. During the stage preceding the formal initiation of the procedure, a competition authority will, in many cases, have to prepare a series of preliminary investigation measures. In particular, it is frequently necessary in competition investigations to carry out inspections at the offices of the undertakings concerned and these are usually carried out before or in parallel with the initiation of the procedure, so that the undertakings will not have the opportunity to destroy or conceal evidence that is not in their favour. Careful preparations must be made for such inspections if they are to be effective, which means that it is necessary to collect sufficient material to justify them and to identify as precisely as possible the evidence that will be sought. Such investigations generally call for a law enforcement presence, they are often carried out simultaneously at several of the undertaking’s premises and they sometimes require coordination with the competition authorities of other Member States or the Commission or both, all of which has obvious implications for the period of time needed to make the necessary preparations.
104. It is settled case-law that the reasonableness of the period taken up by proceedings is to be appraised in the light of the circumstances specific to each case, such as its complexity and the conduct of the parties. (30) The period of time allowed under the national legislation at issue not only fails to take account of the complexity of competition cases, but also seems to rest on a premiss that completely disregards the fact that national competition authorities often need the cooperation of the undertakings concerned, for example, when requesting information. When an undertaking is uncooperative, that can, under some circumstances, result in delay, (31) or even cause a time limit to be exceeded, with no responsibility being attributable to the national competition authority. Nevertheless, under the national rules at issue, the legal consequences are the same, whether the delay is attributable to the undertaking or to the AGCM.
105. In addition, account must be taken of the fact that, before formally initiating the procedure, national competition authorities generally coordinate among themselves and with the Commission, so as to ensure the optimal distribution of cases among the various authorities in the network referred to in Regulation No 1/2003 (the European Competition Network). Such coordination is particularly necessary when complaints or requests for leniency are addressed to several national competition authorities. Furthermore, in some cases, before initiating the formal procedure, a national competition authority may consider it necessary to await the decision of another authority, in particular so as to be able to assess whether a national court or the EU judicature might apply the principle ne bis in idem.
106. Given the extent of these preliminary activities, it seems to me, as it does to the Commission, that in many cases it would be extremely difficult, if not impossible, for the AGCM to carry out these activities within a period of just 90 days. The fact that the national rules do not allow for that period to be interrupted or extended makes it even more difficult to take the necessary measures within the time limit set.
107. The fact that a single time limit has been set obliges the AGCM to treat all infringements of which it is notified without any differentiation. That has the effect of making its work purely mechanical in the sense that the various infringements it must examine will have to be dealt with in the chronological order in which they are registered, rather than according to their complexity or seriousness. The fact that observance of the time limit becomes an imperative has the effect of preventing the AGCM from organising its work freely, as is required by Article 4(5) of Directive 2019/1, which is to say, having the power to set its priorities for carrying out the tasks for the application of Articles 101 and 102 TFEU. Consequently, the fact that the AGCM does not have sufficient time to deal with the most complex and probably less obvious infringements, even if they require an in-depth investigation, is liable to undermine its independence.
108. The obligation to examine infringements within an unreasonably short period of time could push the AGCM to the limits of its capabilities. In this connection, it should be recalled that, in accordance with Article 5(1) of Directive 2019/1, Member States must ensure, at a minimum, that national competition authorities have a sufficient number of qualified staff and sufficient financial, technical and technological resources that are necessary for the effective performance of their duties, and for the effective exercise of their powers for the application of Articles 101 and 102 TFEU. Excessive use of the AGCM’s resources without providing the backup needed to ensure that it is continually able to operate properly could therefore potentially be regarded as an infringement of the aforementioned provision.
109. Lastly, the 90-day time limit laid down in the national legislation at issue could persuade the AGCM to give priority to investigating the simplest cases and to leave aside the more complex ones, in which it would most probably fail to meet the deadline, because it is too short, with the result that certain anticompetitive practices, including no doubt practices very damaging to the economic interests of competitors, might never be established or, consequently, penalised.
110. It seems to me that, for the most part, the considerations set out above also apply in the related field of consumer protection. Although Directive 2005/29 does not lay down any time limit for procedures designed to establish unfair commercial practices, the fact remains that Articles 11 and 13 of that directive must be interpreted in light of the directive’s purpose, which is to achieve a high level of consumer protection by approximating the provisions of the Member States on unfair commercial practices harming consumers’ economic interests. (32)
111. Accordingly, it is for the domestic legal system of each Member State to establish rules of procedure designed to ensure that adequate and effective means exist to combat unfair commercial practices and to penalise them effectively, proportionately and dissuasively, as is contemplated by Articles 11 and 13 of Directive 2005/29. These rules of procedure must not, however, be less favourable than those governing similar domestic situations and must not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law.
112. As regards the principle of effectiveness, the observance of which must be analysed, it is settled case-law that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its operation and its special features, viewed as a whole, before the various national bodies. (33) In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. (34)
113. Although EU law does not, in principle, preclude procedural time limits from being set in the interests of legal certainty, (35) such time limits must nevertheless not jeopardise the attainment of the objectives which Directive 2005/29 aims to protect. (36) It is therefore necessary to consider whether, in a situation such as that in the main proceedings, the 90-day time limit laid down in the national legislation at issue is such as to make it excessively difficult or impossible in practice for adequate and effective means to exist to combat unfair commercial practices and to penalise them effectively, proportionately and dissuasively, as is contemplated by Articles 11 and 13 of Directive 2005/29 respectively.
114. It is important to emphasise in this connection that the AGCM, as the authority entrusted by the Italian Republic with the application of Directive 2005/29, must be allowed a reasonable period of time in which to find substantiation for the information provided in reports from individual consumers or to verify the information which it has obtained of its own initiative in the individual cases in question. A mandatory time limit of 90 days for the pre-investigation stage might be reasonable in relatively simple cases, but it would seem too short in other cases that are, for example, factually or legally more complex. It follows that there is a significant risk that the AGCM will not have the time and means needed to combat and penalise unfair commercial practices in accordance with that directive. The AGCM would then find itself in just as difficult a position as I described earlier in relation to combatting anticompetitive practices.
115. In addition, a 90-day time limit could have an impact on the cooperation which exists between the AGCM and other similar authorities in the other Member States and with the Commission pursuant to Regulation 2017/2394, which, in accordance with Article 2(1) thereof, applies ‘to intra-Union infringements, widespread infringements and widespread infringements with a Union dimension, even if those infringements have ceased before enforcement starts or is completed’. Chapter IV of that regulation governs coordinated investigation and enforcement mechanisms for widespread infringements with a Union dimension. In particular, Articles 17 and 19 of that regulation govern respectively the launching of coordinated action and the investigation measures that may be carried out in coordinated actions. Under those provisions, the authority of one Member State may be called upon to act upon a report from the authority of another Member State or from the Commission.
116. The time limit laid down by the national legislation at issue might not allow a reasonable period of time for effective cooperation between these authorities, for the same reasons as I mentioned in connection with competition law. I would not rule out the possibility that too heavy a workload, in conjunction with too short a time limit, would force the AGCM to abstain from such cooperation partially or entirely. Thus, the consequences of the loss of rights resulting from failure to observe the 90-day time limit could affect the application of consumer protection law even outside the Member State in which the infringement was committed and possibly across the European Union.
117. The time allowed seems too short to me, especially since Italian law already provides for a limitation period of five years, which takes sufficient account of the interest of legal certainty. Once that five-year limitation period has expired, the undertakings concerned should not, in principle, expect any action to be taken by the AGCM in respect of a given infringement. For this reason, a 90-day time limit seems unnecessary, subject to the assessment of the referring court. The limitation period being reasonably long, it creates no doubt, in my view, regarding observance of the principle of effectiveness. By way of comparison, it should be noted that Articles 25 and 26 of Regulation No 1/2003 provide for limitation periods of three and five years, which shows that the limitation period provided for in Italian law is at the upper limit applicable to procedures conducted by the Commission.
118. Lastly, it is necessary to examine the argument advanced by C&T that the time limit at issue is justified by the protection of legitimate expectations of the undertakings concerned. That argument is based on the premiss that inertia on the AGCM’s part in exercising its powers to impose penalties gives rise to a legitimate expectation on the part of the undertaking which is the subject of investigation. According to C&T, the failure to observe a reasonable time limit for the initiation of a competition procedure constitutes a violation not only of the principle that administrative action must be appropriate and effective, but also of the interest of the operator conducting its business in the market that any statement of objections should be prompt, so that it is in a position to defend itself effectively at a time close to when the conduct complained of took place and, if appropriate, to alter that conduct of its own accord.
119. This argument seems to rest on a misunderstanding of the role of the national authority responsible for finding and penalising infringements of consumer and competition law. Indeed, inaction on the part of such an authority is not tantamount to a declaration that a commercial practice is in conformity with internal market rules. In other words, it is not possible to make a legal inference of the lawfulness of the commercial practice in question from inaction on the authority’s part, as if it amounted to tacit consent. Consequently, there is no presumption of lawfulness for a commercial practice on which an undertaking could rely in such circumstances. If it were otherwise, the system of monitoring would be rendered absurd, because undertakings could rely on the authority’s inaction even if the commercial practice in question were a flagrant breach of EU law. The effective application of the rules of consumer and competition law would be seriously compromised. For those reasons, I consider that the argument should be rejected.
(b) Uncertainty regarding the starting point of the 90-day period
120. Another aspect that raises questions about observance of the principle that decisions must be adopted within a reasonable time, which is a general principle of EU law governing administrative procedures, is the uncertainty regarding the starting point of the contested 90-day period. As I have already indicated, this aspect is, according to the Court, one of the criteria that must be taken into account in assessing the brevity of a procedural time limit. (37) As the orders for reference state, the national legislation at issue requires the AGCM to initiate the investigation procedure with a view to establishing an abuse of a dominant position or an unfair commercial practice within a period of 90 days, ‘starting from the moment the AGCM has knowledge of the essential elements of the infringement, which could be no more than those set out in the first report of the infringement’.
121. The way in which the starting point of the 90-day period is described in the questions referred for a preliminary ruling shows that the triggering event may vary according to the circumstances of the individual case. It depends on whether a complaint contains all the information the AGCM will need to identify an infringement. This should probably be the simplest possible test, so that the starting point of the period can be determined precisely. However, as the referring court explains, such a scenario does not always appear to arise in practice. Indeed, it is clear from the case file that the parties to the main proceedings disagree on the precise starting point of the periods in their respective cases. That is due, in particular, to the lack of clarity of the legal requirements that must be satisfied. The referring court itself acknowledges that the starting point of the 90-day period cannot be identified unequivocally ex ante.
122. In describing the manner in which the period at issue commences, the referring court uses a variety of slightly different forms of words. Thus, the period begins to run as soon as the AGCM ‘has knowledge of the essential elements of the infringement’. In order to determine the starting point of the period, the Italian administrative court must determine, ex post, at what point in time the information then available to the AGCM was ‘sufficient in order for it to formulate a statement of objections’, whether a statement of objections could ‘reasonably be formulated’, or the point at which the AGCM had ‘finished gathering the facts it needed in order to allege the unlawful conduct’. This point in time may, but need not necessarily, coincide with the moment the first report of the infringement is brought to the AGCM’s attention.
123. The room for interpretation thus left means that the starting point of the period becomes moot, as is confirmed by the written observations submitted in the present cases. I would point out in this connection that, according to settled case-law, where Member States adopt measures by which they implement EU law, they are required, by virtue of the principle of legal certainty, the aim of which is to ensure that situations and legal relationships governed by EU law remain foreseeable, to ensure that rules of law are clear and precise. (38)
124. However, I consider that rules such as those here at issue do not satisfy the requirements of legal certainty, especially if one considers the interest of all parties in knowing whether decisions adopted by the AGCM are in accordance with the law or whether the rights of the undertakings concerned have been infringed. The answer to these questions should be clear and it seems unacceptable, from an objective viewpoint, for it to be necessary for a court to provide clarification, especially since the calculation of a time limit is a fundamental issue in exchanges between the administrative authorities and citizens in the context of administrative procedures.
125. Given that the abovementioned criteria do not make it possible to determine the starting point of the period with the necessary certainty, there is a risk that the AGCM will adopt decisions that could be considered to be vitiated by unlawfulness and which may therefore be contested before the national courts. That diminishes its effectiveness as the national authority responsible for ensuring compliance with the internal market rules in the area within its competence.
(c) The serious consequences of failure to initiate a formal procedure within the time limit
126. The impact of these national rules is increased by the fact that serious legal consequences ensue from failure to observe the time limit, that is to say that, if the time limit is not observed, the AGCM may no longer exercise its powers to establish or prohibit infringements and to impose penalties. As the referring court indicates, commencing the investigation procedure out of time has the effect of invalidating the final measure adopted by the AGCM. Thus, if a national court is called upon to rule on the lawfulness of a measure adopted in such circumstances, its decision will relate both to the fine and to any other provisions (such as orders to bring a practice to an end or to abstain from a practice), thus rendering the AGCM’s intervention nugatory. In other words, failure to observe the time limit at issue has the automatic consequence of complete annulment of the AGCM’s decision.
127. It must therefore be stated at this stage of the analysis that, under Italian law, the penalty for non-observance of this procedural rule is particularly severe, which raises the question of the legal justification for adopting such an approach. According to the referring court, the national rules at issue ‘give rise to an irrebuttable presumption of infringement of the trader’s rights of defence, linked to the expiry of the time limit’. Since the national rules at issue implement EU law, they must be subjected to strict scrutiny. First and foremost, it is necessary to ascertain whether they are consistent with the requirements of EU law. More specifically, it is necessary to consider whether the national rules take due account of the rights of the defence.
128. It appears from the case-law that, when exercising their procedural autonomy, Member States must ensure not only that EU law is fully effective, but also that fundamental rights are observed, including the rights of defence of undertakings which are the subject of infringement proceedings. (39) Moreover, the Court has already held that the excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence in the second phase of the procedure. (40) In this connection, it might be relevant to point out that, according to the Court of Justice’s competition case-law, the preliminary investigation stage begins when the competent authority takes measures involving a complaint that an infringement has been committed and having a significant impact on the situation of the undertakings concerned. (41)
129. As regards secondary law, I would draw attention to Article 3(2) of Directive 2019/1, which expressly imposes an obligation to ensure that, in proceedings concerning infringements of Article 102 TFEU, national competition authorities observe the rights of defence of undertakings, including the right to be heard. Similarly, Article 3(3) of Directive 2019/1 requires that, before adopting a decision finding an infringement and requiring it to be brought to an end, national competition authorities adopt a statement of objections.
130. In this instance, like the Commission, I struggle to see how the national legislation at issue could be such as to protect the rights of the defence. First of all, I would draw attention to the fact that undertakings that are alleged to have implemented an anticompetitive practice or an unfair commercial practice do not find their rights of defence infringed if the 90-day period is exceeded because, in any event, the AGCM cannot issue a penalty without proceeding to the investigation stage, in the course of which the undertakings concerned enjoy the necessary safeguards and are able to assert their rights of defence. Indeed, under the applicable national legislation, such undertakings have access to the case file and may submit written observations and documents. (42)
131. Secondly, I would observe that it does not appear to be necessary, in order for the rights of the defence to be protected, to require that, in every case, undertakings exercise those rights in the course of a pre-investigation stage. The Court has already held that, while it is admittedly important to ensure that an undertaking’s rights of defence are not irremediably impaired during the preliminary stage of infringement proceedings brought by the Commission, it is not, however, necessary, as a matter of routine, to warn that undertaking even of the mere possibility of measures of investigation or of proceedings based on EU competition law. (43) Consequently, it is, in principle, sufficient to ensure that the rights of the defence may be exercised before a decision is taken by the AGCM, as is provided for by the aforementioned national legislation.
132. These considerations seem all the more relevant to me since, according to the Court’s case-law, unreasonable delay on the Commission’s part when applying the competition rules can constitute a ground for the annulment of a decision finding an infringement only if it has been proved that the infringement of the principle that decisions must be adopted within a reasonable time had adversely affected the rights of defence of the undertakings concerned. Otherwise, any failure on the Commission’s part to fulfil its obligation to adopt a decision within a reasonable time cannot affect the validity of infringement proceedings. (44) That case-law demonstrates, to my mind, that the guarantee of a reasonable period is not an end in itself but a corollary of the rights of the defence. Accordingly, unreasonable delay cannot render an administrative decision unlawful unless it has resulted in a specific violation of the rights of the defence. The Court has emphasised on a number of occasions that the burden of proving such a violation falls on the undertaking alleging a breach of its rights of defence, and that it must discharge that burden of proof with specific evidence and not merely general assertions. (45) In my opinion, it is appropriate to apply this case-law, by analogy, to procedures conducted by national competition authorities when they are acting pursuant to Article 102 TFEU.
133. As I have explained in the preceding points, it is far from evident that there has been any such infringement of the rights of the defence in this instance. Therefore, in so far as exceeding the time limit at issue gives rise to an irrebuttable presumption of infringement of the rights of defence of the undertakings concerned, to use the terms of the referring court, the national rules at issue do not, in my view, strike a proper balance between the effective application of Article 102 TFEU and the rights of defence of the undertakings concerned, as is required by the case-law of the Court. (46) The penalty of invalidity arising from these rules seems to me to be clearly disproportionate to the objective which they ostensibly pursue.
134. Furthermore, it appears that the national rules at issue are, on the contrary, liable to have a negative impact on the rights of the defence. Indeed, as the referring court explains, if it proves impossible to obtain the necessary evidence to support the hypothesis of incrimination during the pre-investigation stage, because it is too short, the AGCM will be obliged to ‘trawl’ for information during the inter partes investigation, gathering indiscriminately all information in some way connected with the undertaking’s business, which would be considerably more burdensome for both sides. Such a scenario, in which the undertaking would risk being made subject to potentially more intrusive measures, could easily be avoided if the AGCM had sufficient time to gather the information it needs in order to formulate a complaint against the party concerned.
135. The grave consequences which ensue from failure to initiate a formal procedure within the time limit thus prevent the AGCM from effectively carrying out the tasks entrusted to it. It follows from the foregoing analysis that so diminishing the effectiveness of the implementation of Article 102 TFEU and Articles 11 and 13 of Directive 2005/29 cannot be accepted on the basis of allegedly protecting the rights of the defence.
(d) Application of the principle ne bis in idem
136. That finding is in itself sufficient to conclude that the national rules at issue, as interpreted by the Supreme Court in administrative matters, do not satisfy the requirements of EU law. Nevertheless, one last aspect of these rules remains to be considered, one which, in my opinion, significantly weakens the operation of the system of monitoring established in the fields of competition and consumer protection, and to such a degree that the identification and penalising of infringements might well become illusory. I am referring to the application of the principle ne bis in idem.
137. In practice, the application of this principle means that, if the time limit has passed without the AGCM giving the trader formal notice of the initiation of the investigation procedure, it will be impossible for it to investigate the commercial practice at a later date or to take any action to protect consumers, for example, by issuing an order to bring a practice to an end or prohibiting its implementation. The same applies for measures to protect free competition.
138. Such consequences would, in my view, make it possible both to continue with an unfair and anticompetitive commercial practice already in place and to implement such a commercial practice. In addition, such a commercial practice would never be penalised, and this would create a feeling of impunity in the business world. (47) Other undertakings could, in turn, wrongly conclude that the commercial practice is permissible and rely, unacceptably, on the principles of legal certainty and equal treatment to justify their copying the commercial practice. Many such commercial practices could then be perpetuated, or become even more widespread, which would have grave consequences for the single market.
139. The AGCM, incapable of taking corrective action, might well find its authority seriously called into question. It would be equally incapable of cooperating with its partner authorities in other Member States and with the Commission in the networks created for this purpose. Such an outcome would clearly run counter to the objective of protecting consumers and undertakings against possibly unlawful conduct on the part of economic operators.
140. The consequences of this aspect of the rules at issue certainly depend on how the principle ne bis in idem is interpreted in the Italian legal system. Above all, the regulatory scope of this concept is crucial in evaluating its impact on the operation of the monitoring system. The foregoing considerations are based on the information available in the case files. It therefore falls to the national court, which has a thorough knowledge of domestic law, to assess whether this legislation frustrates the objectives of European Union law.
D. Closing remarks
141. On the basis of the foregoing analysis, it may be stated that the combination of various aspects of the national rules, which set a time limit for the conclusion of one stage in the administrative procedure, cause a significant hindrance to the work of the AGCM, one which can in no way be justified by considerations such as legal certainty, the protection of legitimate expectations or the rights of the defence, as principles of EU law. The time limit at issue cannot be described as ‘reasonable’, according to the criteria established in the case-law. That being so, it must be concluded that the national rules in question do not satisfy the requirements of the principle of effectiveness, since they render the enforcement of EU legislation on consumer protection and competition excessively difficult, if not practically impossible.
142. More specifically, I have observed in this Opinion that there is a risk that the AGCM will be prevented from ordering that cessation of anticompetitive or unfair practices, particularly in more complex cases, and from consequently penalising them, which runs counter to the requirements of Article 102 TFEU and Articles 11 and 13 of Directive 2005/29. There is also the risk that the AGCM’s ability to organise its work in independent fashion, as is required by Article 4(5) of Directive 2019/1, will be diminished. Lastly, there is the risk that its ability to cooperate effectively with its partner authorities and the Commission will be seriously impaired. That would result in a failure, in Italy, of the mechanisms for the monitoring of the EU internal market and would thereby jeopardise one of the principal achievements of European integration, expressly mentioned in Article 3(3) TEU.
143. That in turn raises the question of whether, in this instance, it is nevertheless possible to interpret national law in such a way that the objectives pursued by the provisions of EU law in question can be attained. It must be recalled in this connection that, according to the Court’s settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 4(3) TEU and Article 288 TFEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. (48)
144. To fulfil that obligation, the principle of interpretation in conformity with EU law requires the national authorities to do everything within their power, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and achieving an outcome consistent with the objective pursued by it. (49) However, the principle of interpretation of national law in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem. (50)
145. It is for the national court here to determine, in the light of the foregoing considerations, whether it is able to interpret the national rules at issue in conformity with EU law and, if appropriate, to refrain from applying them to infringement proceedings conducted by the AGCM in the fields of consumer protection and competition. Without prejudice to the assessment that is to be carried out by the national court, I do not see, a priori, any insurmountable obstacles to such a solution, especially as the orders for reference state that the current case-law of the Consiglio di Stato (Council of State) is regarded as having been established only in recent years. (51) The national court thus appears to have a sufficiently broad discretion as regards the interpretation which it may give to the provisions of national law at issue in the main proceedings. That being so, it seems to me possible to revert to the earlier line of case-law, according to which the legislation in question did not apply to this type of proceedings. (52)
146. For the reasons which I have set out in this Opinion, I consider that the answer to the questions referred for a preliminary ruling should be that Article 102 TFEU, Article 4(5) of Directive 2019/1, and Articles 11 and 13 of Directive 2005/29, read in the light of the principle of effectiveness, are to be interpreted as precluding provisions of national law, such as Article 14 of Law No 689/81, which lay down short time limits and, by so doing, prevent national authorities responsible for the application of the aforementioned EU legislation from deploying adequate and effective means to combat anticompetitive or unfair commercial practices within the single market and to penalise them effectively, proportionately and dissuasively.
VI. Conclusion
147. In light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) as follows:
Article 102 TFEU, Article 4(5) of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, and Articles 11 and 13 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’), read in the light of the principle of effectiveness,
are to be interpreted as precluding provisions of national law, such as Article 14 of Legge 24 novembre 1981, n. 689 – Modifiche al sistema penale (Law No 689 of 24 November 1981 amending the criminal justice system), which lay down short time limits and, by so doing, prevent national authorities responsible for the application of the aforementioned EU legislation from deploying adequate and effective means to combat anticompetitive or unfair commercial practices within the single market and to penalise them effectively, proportionately and dissuasively.