Antitrust Bites - Newsletter

Can an undertaking recover sums payed to the Antitrust Authority despite not having challenged the decision?

An undertaking that did not challenge, before the Administrative Court, a decision of the Italian Competition Authority (ICA) imposing a fine for participating in an anticompetitive agreement has the right to obtain a refund of the sum paid to the ICA in execution of the decision. The undertaking can claim a refund if the Administrative Judge, upholding the appeal lodged by other undertakings fined for the same conduct, annulled the decision, deeming the ICA's ascertainment of the anticompetitive agreement to be groundless.

This has been clarified by the Council of State which, with judgment no. 8568 of 19 December 2019, ordered the ICA to refund the sums paid by a leniency applicant in execution of the decision I733 with which the ICA had ascertained the existence of an anticompetitive agreement in the maritime agency services market.

The Council of State stated that in the light of the ascertainment of the non-existence of the anti-competitive agreement by the Administrative Judge, the sums paid in execution of an ICA decision by an undertaking which has not challenged the decision in front of the Administrative Court constitute a payment not due under Article 2033 c.c. whose restitution is a right of the paying undertaking.

The French Competition Authority will now be able to access data from electronic communications operators for its investigations. And what about the Italian Competition Authority?

In France, Decree No. 2019-1247 of 28 November 2019 set out the conditions by which the Autorité de la concurrence will be able to access the traffic data of telephone operators under the new power granted to it by the loi PACTE of May 2019. Specifically, whenever there are indications of a breach of competition rules and the traffic data is necessary for the purposes of the investigation, the Authority may submit a request for access to a newly created authority, represented by a member of the Council of State or a magistrate of the Supreme Court.

In Italy, to date, there is no law regulating the acquisition of connection data by the Italian Competition Authority.

The economic value of users' data: The Hungarian Competition Authority fines Facebook in a consumer protection case

With the decision taken in December 2019, the Hungarian Competition Authority has fined Facebook for claiming on the home page and on the Help Center that the...