Antitrust Bites – Newsletter

90-Day Limitation Period and ICA Proceedings: the Council of State Raises Constitutional Issues

By order dated June 30, 2026, the Council of State raised a question of constitutionality regarding the obligation – arising from certain rulings of the EU Court of Justice – to set aside the 90-day limitation period provided for in Article 14 of Law No. 689/1981 for notifying the opening of the preliminary investigation phase in the ICA's antitrust proceedings.

The Council of State deemed it necessary to refer the matter to the Constitutional Court for two main reasons. First, the Council of State held that the decisions issued by the Court of Justice regarding the conformity of Article 14 with European law (see, in this regard, our newsletter from February 2025) raise doubts as to its compatibility with the fundamental principles of the Italian Constitution. Second, the referral would allow the Constitutional Court, should it deem it useful or necessary, to establish a direct dialogue with the Court of Justice through the preliminary ruling procedure.

The Council of State therefore raised two questions of constitutional legitimacy. Primarily, the Court formulated a question regarding the constitutional legitimacy of Article 2 of Law No. 130/2008, which mandates the implementation of EU law, as interpreted by the Court of Justice, to the extent that it requires, in the case at hand, the obligation for the national court to disapply Article 14 to the extent that it provides for a 90-day deadline for initiating the preliminary investigation phase in antitrust enforcement proceedings.

In referring this first question, the Court invoked the theory of “counter-limits,” which, if upheld, would preclude the incorporation into the domestic legal system of the obligation to disapply the provision on the grounds that it conflicts with certain fundamental principles of the constitutional order, represented, in particular, by the principles of legality and legal certainty (Articles 3, 23, and 25 of the Constitution, respectively), of the prohibition on retroactive application of criminal laws (Article 25, paragraph 2, of the Constitution), the effectiveness of judicial protection (Articles 24 and 113 of the Constitution, respectively), the proper functioning of public administration (Article 97 of the Constitution), legal certainty, as well as equality and reasonableness (Article 3 of the Constitution).

In the alternative, should Article 2 of Law No. 130/2008 not be declared unconstitutional within the limits set forth above, the Court raised a question concerning Article 14 of Law No. 689/1981 and Article 31 of Law No. 287/1990, insofar as – due to the obligation to set aside the 90-day deadline – they do not provide for a specific deadline for commencing the preliminary investigation phase.

With regard to this second question, the Council of State found that the conditions for a manipulative judgment were met, proposing direct intervention by the Constitutional Court aimed at introducing a 180-day deadline running from the date of ascertainment, in line with the deadlines for charging the offense established by the legislature for sanction proceedings initiated by other independent authorities, and deemed suitable to ensure compliance with the requirements set forth by the Court of Justice.

 

The EU Court of Justice rules on the protection of personal data in antitrust inspections

With its judgement of July 16, 2026, the EU Court of Justice ruled in the joined cases of Imagens Médicas Integradas, Synlabhealth II, and SIBS (C-258/23, C-259/23, and C-260/23), concerning requests for a preliminary ruling submitted by a Portuguese court regarding the seizure of business documents transmitted via email in the context of competition investigations.

In its preliminary questions, the Portuguese court asked the Court of Justice whether Article 7 of the Charter of Fundamental Rights of the EU (Charter) precludes national rules that allow for the seizure of business documents contained in email messages without prior authorisation from a judicial authority. More specifically, the court asked whether such seizure could be authorised by the public prosecutor or whether, since emails qualify as “communications” within the meaning of Article 7 of the Charter, authorisation from an investigating judge was required.

The Court first held that business-related emails exchanged between employees and managers of a company via corporate email fall within the concept of “communications” protected by Article 7 of the Charter. As the Advocate General observed in her opinion (see, in this regard, our newsletter from October 2025), this classification is independent of whether the content is private or professional in nature, whether the messages have already been received, read, unread, or deleted, and whether the communication was sent from business premises, using business equipment, or from business email addresses. The Court also extended its review, ex officio, to Article 8 of the Charter, as such emails and the business documents derived from them may contain personal data.

In this context, the Court recognised that the seizure of corporate emails restricts the rights protected by Articles 7 and 8 of the Charter, which safeguard, respectively, the right to respect for private life and communications and the right to the protection of personal data. However, such limitations are permissible only if they are provided for by law, respect the essence of those rights, genuinely meet objectives of general interest recognised by the European Union and respect the principle of proportionality.

From this perspective, the Court noted that the seizure of emails relevant to an antitrust investigation may be justified by the objective of preserving undistorted competition in the internal market, even in the absence of prior judicial authorization, provided that the authority’s powers are strictly regulated and accompanied by adequate safeguards against abuse and arbitrariness, including effective ex post judicial review.

The Court clarified, however, that when an investigation requires the seizure of devices belonging not to the undertaking but to its employees or managers, access to the data contained therein must be subject to prior review by a court or an independent administrative authority. Since such devices can be used simultaneously for both private and professional purposes, they may contain data whose acquisition would constitute a serious interference with the fundamental rights of the individuals concerned.

 

Exchange of information between competitors: Advocate General Rantos’s opinion on the concept of concerted practices

On July 9, 2026, Advocate General Rantos delivered his opinions in a case concerning an (alleged) concerted practice consisting in the exchange of information regarding future intentions to increase motor vehicle liability insurance policies rates.

To the Court of Justice has been asked to clarify:

• the level of detail of the information exchanged between competitors for the exchange to constitute a concerted practice;
• the possibility for an undertaking to provide alternative explanations to refute the existence of a concerted practice.

With regard to the first aspect, the Advocate General favors a pragmatic approach: what matters is not the degree of specificity of the information exchanged in the abstract, but its actual ability to reduce or eliminate uncertainty regarding the conduct of market participants, taking into account the characteristics of the market. From this perspective, establishing the existence of a concerted practice does not necessarily require the exchange among competitors of detailed and individualized information regarding future intentions regarding prices. Even information expressed in general terms may be sufficient to constitute a concerted practice if, considering its content and the characteristics of the relevant market, it is capable of reducing or eliminating uncertainty regarding the future conduct of competitors.

The level of detail of the information exchanged is a relevant factor in assessing its ability to reduce or eliminate competitive uncertainty, but it is not decisive.

As for the scope of the alternative explanations put forward by an undertaking to refute the existence of a concerted practice, the Advocate General distinguishes between two scenarios:

• if the competition authority infers the existence of a concerted practice solely from parallel conduct on the market, such parallelism may constitute evidence of concertation only if it represents the “sole plausible explanation” for that conduct. In such a case, the company may provide an alternative explanation, which the authority is required to take into consideration;
• if, on the other hand, the concertation is established on the basis of direct evidence of an exchange of information, there is a presumption that the undertakings participating in the exchange took the exchanged information into account; however, they may rebut this presumption by proving the contrary. In such a case, the authority is required to examine the evidence submitted for that purpose, as well as the evidence intended to challenge the notion that the exchange is sufficient to prove collusion.

 

Unfair commercial practices: clickbaiting under ICA's magnifying glass

With its decision published on June 30, 2026, the ICA imposed a fine of EUR 50,000 on the publisher of an online news outlet, finding that certain clickbaiting practices used on its website constituted unfair commercial practices.

Clickbaiting is a digital communication strategy used by news outlets, blogs, and other information channels that involves the use of sensationalist and eye-catching headlines designed to grab the reader’s attention and entice them to click on the article, which, once opened, turns out to be inconsistent with the headline or even devoid of any real informational content.

According to the ICA, this practice employs digital interface design solutions intended to influence users’ behavior and affect their decision-making process, thereby limiting their ability to make autonomous and informed choices.

Readers are first drawn in by the headline’s emphasis and then kept on the site longer than it takes to read the news, as they are forced to scroll repeatedly in a (futile) search for the information promised in the headline. This, moreover, requires users to navigate through numerous advertisements that extend the time spent on the article.

In the ICA's view, this practice – by inducing users to access the content and prolong their time on the site – is likely to result in the collection of a significantly greater amount of personal data than is strictly necessary for viewing the news article. This data has independent economic value that can be exploited for commercial gain by the business.

Consequently, the ICA rejected the professional’s defence argument that the reader would not be led to make any commercial decision, since no financial contribution was required of the reader.

In this regard, the ICA emphasizes that a commercial choice is not limited solely to decisions whose object or effect is the completion of monetary transactions but also includes decisions regarding the choice to use one service rather than another, as well as the decision regarding the time devoted to using that service. Moreover, case law is unanimous in holding that the information assets consisting of user data and user profiling for commercial and marketing purposes acquire an economic value sufficient to establish the existence of a consumer relationship between the business and the user.

In light of these considerations, the ICA has determined that clickbaiting constitutes an unfair commercial practice because it is capable, on the one hand, of capturing the reader’s attention through artificially sensational headlines to maximize traffic and advertising revenue; and, on the other hand, of unduly influencing, through the fragmented presentation of news, consumers’ decisions regarding the time to devote to browsing the website.

 

Antitrust law and the football sector: recent rulings by the EU Court of Justice

In two judgments dated July 9 and 16, 2026, the Court of Justice ruled on the compatibility with Articles 101 and 102 TFEU of the regulations adopted, respectively, by the German football federation (DFB) and FIFA regarding the activities of sports agents.

The judgments stem from two separate requests for a preliminary ruling in which the Court was asked to clarify whether:

• the DFB Regulation governing the use of agents by players and clubs for the conclusion of professional player contracts and transfer agreements qualifies for the exception to the prohibition on agreements outlined by the Court for cases in which restrictions on competition pursue a legitimate objective in the public interest;
• the provisions of the FIFA Regulations concerning the following are compatible with Articles 101 and 102 TFEU: (i) agents’ remuneration, (ii) multiple representation, (iii) the conditions for obtaining a FIFA license, (iv) the procedures for contacting potential new players or coaches to be represented, and (v) reporting obligations to FIFA.

As a preliminary matter, the Court reaffirmed that regulations of this kind fall within the scope of competition law, as they govern economic activities consisting of the provision of services for consideration and not matters that concern solely sport per se.

In its first ruling, the Court clarified that, under certain conditions, the exception to the prohibition on cartels may also apply to regulations adopted by a sports federation which, although directed at its own members, affect the activities of third parties not belonging to the federation, such as football agents. According to the Court, the effects on such operators may be necessary to pursue legitimate objectives of general interest that are not anticompetitive in nature, especially when the federation is called upon to regulate the economic ecosystem it regulates and controls.

The Court clarified, however, that it is for the national court to verify, in concrete terms, that the regulation does not constitute a restriction of competition by object and that it is effectively justified by the pursuit of a legitimate objective in the public interest, being suitable, necessary, and proportionate. This assessment must be carried out with reference to the set of provisions that pursue a specific objective or produce a specific effect, and not necessarily in relation to each of the provisions of the regulations at issue.

In the second judgment, the Court noted that, while it is for the referring court to determine whether the contested FIFA provisions can be justified, the rule preventing agents from contacting or representing a client already bound by an exclusive representation contract – except during the two-month period preceding the contract’s expiration – appears, in any event, to be incompatible with Article 101 TFEU.

This prohibition, in fact, does not apply to agents who are already bound by an exclusive representation contract. These agents, on the other hand, may renegotiate or renew their contract at any time, thereby gaining an undue competitive advantage.

As for the prohibition on abuse of a dominant position, the Court referred to the referring court the task of assessing whether the contested provisions are abusive and, should they be found to be unlawful, of determining whether there are any objective justifications for them.