Abstract;Judgment — ECLI:EU:C:2025:42
Date: 2025-01-30
Language of the case: Italian
Court formation: Second Chamber
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-511/23 – 1 
Case C-511/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged: 
8 August 2023 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
1 August 2023 
Applicant: 
Caronte & Tourist SpA 
Defendant: 
Autorità Garante della Concorrenza e del Mercato 
  
Subject matter of the main proceedings 
Action brought before the Tribunale amministrativo per il Lazio (Regional 
Administrative Court, Lazio) (‘the TAR Lazio’) by the company Caronte & 
Tourist (‘the applicant’), seeking the annulment of the decision adopted by the 
Autorità Garante della Concorrenza e del Mercato (National Competition 
Authority, Italy) (‘the AGCM’) by which the latter established the existence of an 
abuse of a dominant position, prohibited under Article 3(1)(a) of legge 10 ottobre 
1990, n. 287 (Law No 287 of 10 October 1990), an order that the applicant bring 
the infringement to an end, and the imposition of a fine on the applicant. 
Subject matter and legal basis of the request 
The reference for a preliminary ruling, made by the TAR Lazio, pursuant to 
Article 267 TFEU, concerns the interpretation of EU law, and in particular 
Article 102 TFEU, in the context of the application of Article 14 of legge 24 
novembre 1981, n. 689 (Law No 689 of 24 November 1981) to antitrust 
procedures conducted by the AGCM. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-511/23 
 
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Question referred for a preliminary ruling 
‘Must Article 102 TFEU, read in the light of the principles of protection of 
competition and effectiveness of administrative action, be interpreted as meaning 
that it precludes national legislation, such as that arising from the application of 
Article 14 of legge 24 novembre 1981, n. 689 (Law No 689 of 24 November 
1981) – as interpreted in the most recent case-law – which requires the Autorità 
Garante della Concorrenza e del Mercato (National Competition Authority, Italy) 
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 
Authority has knowledge of the essential elements of the infringement, the latter 
of which may be met by the first report of the infringement?’ 
Provisions of European Union law relied on 
Article 102 TFEU. 
Provisions of national law relied on 
Legge 10 ottobre 1990, n. 287 (Law No 287 of 10 October 1990), ‘Provisions for 
the protection of competition and the market’ 
Article 1 
‘1. The provisions of this Law, which is enacted under Article 41 of the 
Constitution for the purposes of protecting and guaranteeing the right to economic 
initiative, shall apply to cartels, abuses of a dominant position and concentrations 
of undertakings. 
2. The Autorità garante della concorrenza e del mercato (National Competition 
Authority, Italy) referred to in Article 10, hereinafter referred to as “the 
Authority”, shall also apply in parallel in relation to the same case Articles 101 
and 102 of the Treaty on the Functioning of the European Union and Articles 2 
and 3 of this Law on agreements restricting freedom of competition and abuse 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 Communities.’ 
Article 3 
‘1. Abuse by one or more undertakings of a dominant position within the national 
market or a substantial part of it shall be prohibited, and, moreover, the following 
shall be prohibited: (a) directly or indirectly imposing purchase or selling prices or 
other unjustifiably onerous contractual conditions […]’. 
CARONTE & TOURIST 
 
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Article 12 ‘Powers of investigation’ (version in force at the time the investigation 
was opened): 
‘1. The Authority shall, after having assessed the evidence in its possession and 
that brought to its attention by public administrations or by any other interested 
person, including associations representing consumers, carry out an investigation 
to verify the existence of infringements of the prohibitions laid down in Articles 2 
and 3 […]’ 
Article 12 (version resulting from the 2021 amendment): 
‘… 1-ter The Authority shall have the power to set priorities for intervention in 
the application of this Law and Articles 101 and 102 TFEU. The Authority may 
refrain from following-up on reports that do not fall within its own priorities for 
intervention. 
1-quater Proceedings relating to infringements of Articles 101 or 102 TFEU or 
Articles 2 or 3 of this Law, including the exercise of the powers referred to in this 
Chapter II by the Authority, shall comply with the general principles of EU law 
and the Charter of Fundamental Rights of the European Union […]’. 
Article 14 Investigation (version in force at the time the investigation was 
opened): 
‘1. The Authority shall, in cases of alleged infringement of Articles 2 or 3, notify 
the undertakings and operations concerned of the opening of the investigation 
[…]’. 
Article 14 (version resulting from the 2021 amendment): 
‘1. The Authority shall, in cases of alleged infringement of Articles 101 or 102 
TFEU or Articles 2 or 3 of this Law, carry out the investigation within a 
reasonable time and shall notify the undertakings and operations concerned of its 
opening […]’. 
Article 15 Warnings and penalties (version in force at the time the investigation 
was opened): 
‘1. If, following the investigation referred to in Article 14, the Authority 
establishes the existence of infringements of Article 2 or 3, it shall lay down a 
time limit for the undertakings and operations concerned to cease the 
infringements. In cases of serious breaches, it may also impose, having regard to 
their gravity and duration, an administrative fine of up to 10% of the turnover 
[…]’. 
Article 15 (version resulting from the 2021 amendment): 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-511/23 
 
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‘1. If, following the investigation referred to in Article 14 of this Law, the 
Authority finds the existence of an infringement of Articles 101 or 102 TFEU or 
of Articles 2 or 3 of this Law, it shall lay down a time limit for the undertakings 
and associations of undertakings concerned to cease the infringements or, if the 
infringement has already ceased, it shall prohibit its repetition. For that purpose, 
the Authority may impose any behavioural or structural remedies which are 
proportionate to the infringement committed and necessary to bring the 
infringement effectively to an end. When choosing between two equally effective 
remedies, the Authority shall choose the remedy that is least burdensome for the 
undertaking, in line with the principle of proportionality. 
1-bis It may also impose, having regard to the gravity and duration of the 
infringement, an administrative fine of up to 10% of the turnover realised […]. 
1-quater If, on the basis of the information in its possession, the Authority 
considers that the conditions for establishing an infringement are not met, the 
Authority may take a decision to that effect. Where, after having informed the 
European Commission in accordance with Article 11(3) of Regulation (EC) 
No 1/2003, the Authority considers that the grounds for intervention have ceased 
to exist and therefore terminates the investigation procedure, it shall inform the 
European Commission accordingly […]’. 
Article 31 
‘1. In relation to administrative fines for breaches of this Law, in so far as 
applicable, the provisions of Chapter I, Sections I and II, of Law No 689 of 
24 November 1981 shall apply’. 
Law No 689 of 24 November 1981, ‘Amendments to the Criminal System’ 
Article 12 
‘The provisions of this Chapter shall be complied with, in so far as they are 
applicable and unless otherwise specified, for all infringements for which the 
administrative penalty of payment of a sum of money is provided, even where that 
penalty is not provided for in place of a criminal penalty. […]’. 
Article 14 
‘The infringement, where possible, shall be immediately challenged before both 
the infringer and the person which is jointly and severally liable for payment of 
the sum due in respect of that infringement. 
If the immediate challenge has not taken place before all or some of the persons 
referred to in the preceding paragraph, the details of the infringement must be 
notified to the persons concerned residing in the territory of the Italian Republic 
within 90 days and to those residing abroad within 360 days of the assessment. 
CARONTE & TOURIST 
 
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[…] 
The obligation to pay the sum due for the infringement shall be extinguished with 
regard to the person against whom notification was omitted within the specified 
period.’  
Article 28 
‘The right to recover the sums due for the infringements set out in this Law shall 
be time-barred within five years from the day on which the infringement was 
committed. 
Interruption of the limitation period shall be governed by the rules of the Civil 
Code’.  
Law No 287 of 10 October 1990  
Article 10(5) 
‘… by decreto del Presidente della Repubblica (Presidential Decree) […] 
investigation procedures shall ensure that interested parties have full knowledge of 
investigative acts, the adversarial nature of the proceedings and the minutes. 
Decreto del Presidente della Repubblica 30 aprile 1998, n. 217 (Presidential 
Decree No 217 of 30 April 1998), “Rules on investigation procedures falling 
within the competence of the National Competition Authority, Italy”’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2022, the AGCM found that the applicant had abused its dominant position by 
imposing excessive prices for the transport service, by ferry, of vehicles in the 
Strait of Messina. 
2 In particular, the AGCM, following the so-called United brands doctrine, noted 
the complete lack of correlation between costs and revenues, including through 
the use of several economic tests which confirmed the existence of a significant 
lack of proportionality. Furthermore, even comparing the applicant’s charges with 
those of other foreign companies, the prices imposed were found to be excessive. 
In addition, the AGCM noted the particular importance of the unfair competition – 
which directly affects the consideration paid by the user – having regard also to 
the geographical area concerned, the Strait of Messina, in which the applicant 
holds a near monopoly position, transporting approximately ten million 
passengers and two million motor vehicles each year (data from 2019). 
3 In the present case, on 24 March 2018, the AGCM received a report from a 
consumer complaining about the excessively high prices of the transport service. 
After obtaining that report, on 23 April 2019, that is, 394 days after receiving the 
report, the AGCM sent a request for information to the Autorità portuale di 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-511/23 
 
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Messina (Port Authority of Messina), which, on 22 May 2019, replied, but only in 
part. The AGCM therefore sent a reminder to that port authority, on 19 November 
2019, to which it replied on 26 November 2019. 
4 On 4 August 2020, the AGCM notified the applicant of the initiation of the 
procedure, decided at the meeting of 28 July 2020 (245 days after receipt of the 
port authority’s reply). The procedure came to an end on 11 April 2022, with the 
adoption of a decision by which the AGCM ordered the applicant to refrain in 
future from imposing excessive prices and, in view of the seriousness of the 
infringement, also imposed a fine. 
5 The applicant challenged that decision, seeking its annulment on the ground that 
the AGCM had allegedly initiated the procedure for establishing the infringement 
out of time, that is to say, after the period of 90 days laid down in Article 14 of 
Law No 689/1981. 
The essential arguments of the parties in the main proceedings 
6 According to the applicant, the preliminary investigation stage – in other words, 
the stage prior to notification of the initiation of the procedure, one during which, 
without an adversarial procedure, the AGCM collects the first evidence in order to 
verify the actual existence of the antitrust infringement – continued for a total of 
855 days, thereby violating Article 14 of Law No 689/1981. 
7 In the applicant’s view, the AGCM’s conduct is also in clear contrast with 
Article 6 of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms (‘the ECHR’) and Article 41 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’) in that the rights of 
defence and legitimate expectations of the accused party, which cannot be subject 
to a penalty procedure when the news of the infringement dates back more than 
90 days, are breached. 
8 However, the AGCM considers that the time limit of 90 days is not applicable to 
antitrust proceedings. The only obligation laid down is to open the investigation 
within a reasonable time. In the present case, that was complied with, taking into 
account the complexity of the facts under investigation, also in the light of the 
supervening entry onto the market of another operator, so that it became necessary 
to monitor, for a reasonable period of time, the development of the competitive 
dynamic. 
9 In addition, the AGCM notes that there is no requirement in any other EU 
Member State for the national authorities responsible for the protection of 
competition to immediately initiate the investigation procedure, failing which it is 
be time-barred. In this regard, the AGCM also highlights the concerns expressed 
by the European Commission about the effective application of EU law by the 
Italian Authority in the event of strict imposition of such a short period in which 
to act. In addition, the AGCM notes that that time limit is contrary to Articles 3 
CARONTE & TOURIST 
 
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and 4(5) of Directive (EU) 2019/1 of the European Parliament and of the Council 
of 11 December 2018, which, read in the light of the principle of effectiveness, 
preclude national legislation which requires the AGCM to initiate the 
investigation in accordance with a strict time schedule (in the Italian case, of 
90 days), without guaranteeing it the possibility of choosing independently its own 
priorities for action. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court notes that, on the basis of a recent, now settled, line of case-
law, the period of 90 days laid down in Article 14 of Law No 689/1981 is 
considered to be applicable to the initiation of the AGCM’s investigation 
procedure. 
11 It follows that, once the preliminary investigation stage has been completed, the 
AGCM is required to challenge the infringement within 90 days, by notifying the 
decision initiating the investigation. The 90 days do not necessarily start to run 
from the first report of the infringement, but rather at the conclusion of the 
assessment carried out in the preliminary investigation stage, that is to say, from 
the completion of the collection of the factual elements necessary to challenge the 
infringement. The conclusion of the assessment is subject to review by the 
administrative court (which evaluates the legality of the AGCM’s acts, including 
penalties), which may verify whether, on a certain date, the challenge could 
reasonably be made. 
12 The referring court notes, however, that, if Article 14 of Law No 689/1981 is 
applied mechanically, exceeding the time limit for bringing a challenge, even by 
only one day, results in the annulment of the AGCM’s decision before the courts, 
essentially nullifying the latter’s actions. Although Article 15 of Law 
No 287/1990 makes it clear that the main consequence of the finding of the 
infringement is an order to bring the infringement to an end (whereas the fine is 
imposed only for the most serious cases), the consequence of the single act and, 
above all, of the procedure is that the late initiation of the latter inevitably renders 
invalid the final decision adopted. Moreover, under the ne bis in idem principle, it 
is not possible to re-open at a later stage a new investigation for the same act, even 
in the event of a permanent infringement, in other words, in cases where the 
undertaking has never interrupted its unlawful conduct. 
13 Next, the referring court notes that Article 3 of Law No 287/1990 transposes 
Article 102 TFEU into national law. Consequently, although an abuse of a 
dominant position limited to the national market is alleged, in the light of 
Article 1(4) of Law No 287/1990, there appears to be an interest on the part of the 
European Union in a correct application of the provisions of law for the 
prevention of anticompetitive actions, as the Court of Justice of the European 
Union has pointed out (Court of Justice of the European Union, judgment of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-511/23 
 
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11 December 2007, [ETI and Others] C-280/06, ECLI:EU:C:2007:775, 
paragraphs 21 and 26). 
14 After reiterating that Article 14 of Law No 689/1981 requires the AGCM to 
initiate the investigation procedure within a time limit of 90 days, the referring 
court notes that the Court of Justice, with regard to the antitrust procedure carried 
out at European level, has ruled that the European Commission is required to 
conclude the procedure (understood as the preliminary investigation and the actual 
investigation stage) within a reasonable time (judgment of 15 October 2002, [ICI 
v Commission], C-254/99, ECLI:EU:C:2002:582). 
15 It therefore considers it necessary to clarify whether or not that discrepancy in the 
initiation of antitrust investigations, depending on the (national or common) 
market in which the infringement takes place, is compatible with EU law. 
16 In that regard, the referring court notes that the AGCM has pointed out that the 
application of Article 14 of Law No 689/1981 may adversely affect its 
functioning, impeding the correct application of national and European 
competition law. Indeed, the AGCM would be forced to pursue in parallel 
multiple procedures which, due to their number, could compromise the successful 
outcome of investigations, inevitably leaving some infringements unpunished. 
17 It also stresses the complexity of the AGCM’s activity, which must already carry 
out a considerable number of checks at the preliminary investigation stage in order 
to be able to formulate the challenge correctly. 
18 Furthermore, the strict application of Article 14 of Law No 689/1981 could also 
affect the autonomy of the AGCM. The imposition of a time limit of 90 days 
translates, in practice, into the obligation to initiate investigations according to a 
purely chronological criterion, thus restricting the AGCM’s discretion. 
19 On the latter point, the referring court emphasises that the European legislation 
cited by the AGCM (namely, Articles 3 and 4(5) of Directive (EU) 2019/1) is not 
applicable in the present case – since it was not transposed into Italian law until 
2021, thus after the initiation of the investigation. However, it notes at the same 
time that the Directive does not appear to have an innovative nature, merely 
codifying into substantive law a general principle which already existed in the 
legal system. 
20 As regards the undertaking’s right of defence, the referring court notes, first of all, 
that the imputability of the penalties imposed by the AGCM to the quasi-criminal 
field (on the basis of the principles established by the case-law of the European 
Court of Human Rights, known as the ‘Engel criteria’) determines as a logical 
consequence compliance with the guarantees, including the procedural guarantees, 
referred to in Article 6 of the ECHR and Article 41 of the Charter. In particular, 
these include the obligation, on the public authority, to challenge the infringement 
immediately (‘promptly’, according to the language of the ECHR), in order to 
ensure equality of arms and to prevent that the time elapsed may be to the 
CARONTE & TOURIST 
 
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detriment of the accused. However, the referring court notes that Article 14 of 
Law No 689/1981, as interpreted and applied, goes further, by establishing a 
genuine irrebuttable presumption of infringement of the undertaking’s right of 
defence, linked to the expiry of the time limit, without it being necessary to prove 
the actual harm suffered as a result of the late initiation of the investigation 
procedure. 
21 At the same time, the referring court notes that, in practice, a belated challenge 
against the infringement does not necessarily adversely affect the right of defence 
of undertakings: except in specific cases where the impossibility of submitting 
evidence to the AGCM is established, it should be noted that throughout the 
preliminary investigation stage, the undertakings might even derive a competitive 
advantage from the commission of the infringement. 
22 The referring court then notes that it is precisely the criminal nature in the broad 
sense of the penalty which justifies the existence of a secret stage, in other words, 
without an adversarial process, during which the AGCM is required to gather all 
the elements necessary to bring the challenge: limiting the preliminary 
investigation stage to cursory checks leads to an unreasonable restriction of the 
AGCM’s action, which might not be able to reconstruct the infringement correctly 
and completely. Moreover, excessively moving forward the opening of the 
procedure increases the risk that the AGCM will not acquire the relevant 
evidence. 
23 As regards the protection of legitimate expectations, the referring court notes that, 
given that the moment from which the time limit must be calculated is not fixed, 
but depends on specific factors on a case-by-case basis, such as whether or not the 
report is complete, it does not, in any event, appear to adequately guarantee the 
legitimate expectations of the persons on whom penalties are imposed. In 
addition, it is often argued that inaction on the part of the AGCM harms public 
interests, so that the period is also set in order to seek prompt enforcement action, 
thus avoiding consolidation of reliance on the undertaking. However, the 
application of a time limit for the initiation of the investigation procedure, as 
regards unlawful conduct which is still ongoing, appears contradictory and 
illogical, in so far as it makes it substantially impossible for the AGCM to prevent 
unlawful acts which continue to harm the public interest. 
24 Lastly, in relation to the requirement of legal certainty, the referring court notes 
that the Italian legal system already provides, precisely in order to avoid 
challenges arising after an excessively long period, for a different limitation 
period of five years from the cessation of the unlawful conduct (Article 28 of Law 
No 689/1981).