ANTITRUST | The Council of State on the access to documents held by Independent Administrative Authorities

On 29 October 2025, with judgment No. 8380 (Judgment) the Italian Administrative Court of Second Instance (Council of State) dismissed the appeal brought by the Regulatory Authority for Energy, Networks, and Environment (ARERA) aimed at the reform/annulment of the decision No. 2956 of 2025 issued by the Italian Administrative Court of First Instance of Lombardia (TAR Lombardia). In the latter decision, the TAR Lombardia had uphold the energy company (Company)’s claim against the ARERA’s refusal to grant the Company access to certain documents concerning the administrative sanction previously imposed on the Company. With the Judgment, the Council of State considered that the alleged nature of the requested documents as “minutes, notes, memos, and drafts still in progress” pursuant to ARERA’s internal regulation on the right to access was not sufficient to legitimize ARERA’s refusal. After having emphasized the requirement for the exercise of the right of access, the Council of State concluded that the documents requested by the Company could be classified as administrative documents even if they included internal memos and notes, and that the Company had a qualified interest in obtain their exhibition, because the access was functional to the effective exercise of its right to defense.

Newsletter n. 112 – November 2025