ANTITRUST | The Italian Administrative Court of Second Instance raised a constitutional legitimacy question to the Italian Constitutional Court

On 30 June 2026, the Italian Administrative Court of Second Instance (the Council of State) raised before the Italian Constitutional Court (ICC) a question of constitutional legitimacy concerning Article 2 of Law No. 130/2008, which required the full and complete implementation of the Treaty on the Functioning of the European Union (TFUE) within the national legal system. The issue had arose during an appeal proceeding against a judgment on a decision of the Italian Competition Authority (ICA). In the said judgment the Italian Administrative Court of First Instance held that Article 14 of Law No. 689/1981 – providing that the preliminary investigation phase should be started within 90 days of having the essential elements of the alleged infringement at its disposal – did not apply to ICA’s proceedings. In this context, the Council of State applied the s.c. “theory of counter limits”, holding that the non-application of the aforementioned Article 14 to national antitrust proceedings was contrary to the principles of legality of punitive administrative sanctions, of effectiveness of judicial protection and of equality.

Newsletter n. 120 – July 2026