62023CJ0511_RES
Case C‑511/23
Caronte & Tourist SpA
v
Autorità Garante della Concorrenza e del Mercato (AGCM)
(Request for a preliminary rulingfrom the Tribunale amministrativo regionale per il Lazio)
Judgment of the Court (Second Chamber) of 30 January 2025
(Reference for a preliminary ruling – Competition – Article 102 TFEU – Abuse of dominant position – Empowering national competition authorities to enforce the rules on competition – Directive (EU) 2019/1 – Independence of national competition authorities – Article 4(5) – Setting priorities for the proceedings for the enforcement of Articles 101 and 102 TFEU – Fines on undertakings and associations of undertakings – Article 13 – Procedures for infringement of the rules of competition law – Compliance with a reasonable time limit – National legislation requiring the national authority to issue a statement of objections within a time limit of 90 days of knowledge of the essential elements of the infringement – Automatic annulment in its entirety of the decision of the national competition authority in the event of failure to comply with that time limit – Principle ne bis in idem – Revocation of the power to initiate new infringement proceedings in respect of the same facts – Principle of effectiveness – Rights of defence of undertakings)
Questions referred for a preliminary ruling – Jurisdiction of the Court – Interpretation sought on account of the applicability to a situation confined within one Member State of a provision of EU law rendered applicable by national law – Jurisdiction to provide such an interpretation
(Art. 267 TFEU)
(see paragraphs 29-34)
Acts of the institutions – Directives – Implementation by Member States – Obligations of Member States during the period of transposition – Obligation not to adopt measures that could compromise the attainment of the result prescribed by the directive – Obligation on the national courts, from the date upon which a directive has entered into force, as far as possible to interpret domestic law in a manner which will not compromise attainment of the objective pursued
(Art. 4(3) TEU; Art. 288, third para., TFEU)
(see paragraphs 36-40)
Competition – EU rules – Application by the national competition authorities – Decision finding an infringement of EU competition law and imposing a penalty – Whether national procedural rules are applicable – Conditions – Compliance with the principle of effectiveness – National legislation requiring the national authority to issue a statement of objections within a time limit of 90 days of knowledge of the essential elements of the infringement – Rules liable to undermine the operational independence of the national competition authority – Rules entailing a systemic risk that infringements of EU competition law go unpunished – Not permissible
(Art. 102 TFEU; European Parliament and Council Directive 2019/1, Arts 4(5) and 13(1))
(see paragraphs 43-61, 66-76, 81, operative part)
Competition – EU rules – Application by the national competition authorities – Decision finding an infringement of EU competition law and imposing a penalty – Whether national procedural rules are applicable – Conditions – Compliance with the principle of effectiveness – Observance of the rights of the defence of the undertakings concerned – Striking a balance between those conditions when setting time limits applicable to infringement proceedings
(Art. 102 TFEU; European Parliament and Council Regulation 2019/1, Art. 3(1) and (2))
(see paragraphs 62-65)
Competition – EU rules – Obligations of the Member States – Prohibition on adopting or maintaining in force measures undermining the effectiveness of those rules – Obligations of national courts – Obligation to interpret national legislation in conformity with EU law – Scope
(Art. 102 TFEU; European Parliament and Council Directive 2019/1)
(see paragraphs 78-80)
Résumé
In response to a reference for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), the Court of Justice finds that Directive 2019/1 (
1
) and Article 102 TFEU preclude national legislation which requires the national competition authority to commence the inter partes investigation stage of competition proceedings before it within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement.
On 24 March 2018, the Autorità Garante della Concorrenza e del Mercato (the national competition authority, Italy; ‘the AGCM’) received a complaint concerning the prices charged by Caronte & Tourist SpA (‘C&T’), which provides ferry services across the Strait of Messina (Italy).
Having requested additional information from the port authority of Messina, the AGCM notified C&T on 4 August 2020 of its decision to initiate a procedure with a view to establishing an infringement of competition law.
By decision of 11 April 2022, the AGCM found, on the basis of the national legislation, 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 cease that practice in future and imposed a fine on C&T.
C&T challenged the decision of 11 April 2022 before the Regional Administrative Court, Lazio, relying, inter alia, on the late commencement of the inter partes investigation stage of the procedure which gave rise to that decision.
In that regard, that court explains that, in accordance with national legislation, as interpreted by the Consiglio di Stato (Council of State, Italy), the AGCM is to commence the inter partes stage of competition infringement proceedings by issuing a statement of objections within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first report of the infringement (‘the period at issue’). Any failure to observe that period would entail the annulment, in its entirety, of the AGCM’s decision adopted at the end of the infringement procedure, without the undertaking concerned being required to establish that it has suffered any damage as a result of the failure to observe the period at issue. Moreover, in accordance with the principle ne bis in idem, the AGCM would not be in a position to initiate new infringement proceedings in respect of that same practice, even if the undertaking concerned has never brought an end to it.
Since the Regional Administrative Court, Lazio, harbours doubts as to the compatibility of that legislation with EU competition law, it has decided to refer the matter to the Court of Justice.
Findings of the Court
As a preliminary point, the Court notes that, in the present case, the AGCM’s decision to commence the inter partes stage of the infringement proceedings in respect of C&T was adopted during the period for transposition of Directive 2019/1, which seeks to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. It is clear from settled case-law, that, during the period for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the achievement of the result prescribed by that directive.
Bearing that in mind, the Court holds that, by its question referred for a preliminary ruling, the referring court asks, in essence, whether Directive 2019/1 and Article 102 TFEU are to be interpreted as precluding national legislation such as that at issue in the main proceedings.
In that regard, the Court starts by recalling that, while, in the absence of specific EU legislation, the establishment and application of rules governing procedural time limits for the establishment and imposition of penalties by the national competition authorities fall within the competence of the Member States, the latter must exercise that competence in a manner consistent with EU law.
Thus, national rules laying down such time limits must, in compliance with the principle of legal certainty, seek to ensure that cases are dealt with within a reasonable time by the competition authorities while not having the effect of compromising the effective application of Articles 101 and 102 TFEU and Directive 2019/1 in the domestic legal system.
In order effectively to fulfil their obligation to implement EU competition law, the national competition authorities must be able to give differing degrees of priority to the complaints brought before them, by having, for that purpose, a broad discretion. In addition, the recognition of such a broad discretion is also justified in the light of Directive 2019/1.
In those circumstances, it follows both from the very purpose of the stage prior to the statement of objections in competition infringement proceedings and from the broad discretion which a national competition authority must have in setting priorities for its procedures in respect of the enforcement of Article 102 TFEU that, during that phase of the procedure, such an authority must be in a position not only to carry out all the preliminary measures of inquiry and the often complex factual and legal assessments which are necessary in order to ascertain whether the commencement of the inter partes investigation stage is justified, but also to choose, according to the degree of priority which it wishes to give, in the exercise of its operational independence, to an ongoing infringement procedure, the most appropriate time for commencing, where applicable, the inter partes investigation stage of that procedure.
Thus, a national competition authority must have the possibility of temporarily postponing the commencement of the inter partes investigation stage in a given procedure, even when it has already established the existence of the essential elements of the alleged infringement. Nevertheless, that temporary postponement cannot amount to a failure to observe the reasonable period within which the stage prior to the statement of objections in infringement proceedings must be concluded.
In the light of the above, the Court points out that the application of the period at issue to the preliminary phase of investigative procedures carried out by the AGCM entails the risk that the AGCM may have to treat all infringement proceedings before it without any differentiation, taking into consideration not the circumstances specific to each procedure, but by following only a chronological order, thus preventing it from establishing and implementing priorities for the proceedings for the enforcement of Articles 101 and 102 TFEU.
In addition, the consequences of failing to observe the period at issue are liable to prevent the AGCM from cooperating fully within the European Competition Network, which, as is apparent from Directive 2019/1, is formed by the national competition authorities and the European Commission for the purposes of close cooperation as regards the application and enforcement of Articles 101 and 102 TFEU.
Furthermore, the Court notes, first, that the rights of defence of undertakings subject to infringement proceedings are not, in any event, liable to be infringed solely because the period at issue was not observed. Second, the legal consequences attached to the failure to observe the period at issue, as described by the referring court, appear capable of giving rise to a systemic risk that acts constituting infringements of EU competition law would go unpunished, which runs counter to the principle of effectiveness.
In those circumstances, the Court finds that the application of the period at issue to the AGCM’s activities is liable to have the consequence of undermining the operational independence of that authority and of creating a systemic risk that acts constituting infringements of Article 102 TFEU would go unpunished. It follows that the national provisions laying down the period at issue are liable seriously to compromise the achievement of the result prescribed by Directive 2019/1.
In the light of the foregoing, the Court concludes that Directive 2019/1 and Article 102 TFEU, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which, in proceedings for a finding establishing an anti-competitive practice by a national competition authority first, requires that authority to commence the inter partes investigation stage of those proceedings by notifying the statement of objections to the undertaking concerned within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first report of the infringement, and, second, penalises failure to observe that period by annulling in its entirety the final decision of that authority at the end of the infringement proceedings and revoking that authority’s power to initiate new infringement proceedings in respect of that same practice.
Furthermore, since, in accordance with Italian law, the period of 90 days at issue in the present case is also applicable to the preliminary investigation stage, carried out by the AGCM, in respect of unfair business-to-consumer commercial practices, the Court, in response to a parallel reference for a preliminary ruling from the Regional Administrative Court, Lazio, concluded, by judgment of the same day (
2
) and for similar reasons to those set out above, that Articles 11 and 13 of Directive 2005/29, (
3
) read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which requires, under the same conditions as those set out above, the national authority responsible for the enforcement of consumer protection laws to commence the inter partes investigation stage of the infringement proceedings before it within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement.
(
1
)	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 (OJ 2019 L 11, p. 3).
(
2
)	Judgment of 30 January 2025, Trenitalia (C‑510/23).
(
3
)	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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).