Administrative, AGCM, Unfair Commercial Practices, Assessment Discretion, State Council, Section VI, Ruling No. 6631 of July 25, 2025

Legislative Decree No. 206 of September 6, 2005, Consumer Code

On the AGCM’s discretion in assessing the suitability of commitments undertaken by a company to cease unfair conduct

Independent authorities – Italian Competition Authority – Unfair Commercial Practices – Commitments undertaken by the company – Assessment of suitability – Discretion

Pursuant to Article 27, paragraph 7, of Legislative Decree No. 206 of 2005, the Competition and Market Authority enjoys broad discretion in accepting or rejecting offers of commitment to cease unfair conduct by entities that are the subject of infringement proceedings. This discretion is expressed in two ways:

i) both in determining whether the case, due to its intrinsic gravity and the manifest nature of the unfairness examined, merits finalizing the sanctioning procedure, which would otherwise be inhibited by acceptance of the declaration of commitment;

ii) and in evaluating the specific contents of the declaration expressing the ius poenitendi; thus, even the assessment of the actual suitability of the proposed commitments to eliminate the situations that gave rise to the disputes falls within the technical-discretionary evaluation of the commitments presented within the scope of the broad power vested in the Authority. (1).

Independent Authorities – Italian Competition Authority – Unfair Commercial Practices – Commitments Made by Companies – Discretion – Judicial Review – Limits

The AGCM’s discretionary assessment in accepting or rejecting offers of commitments to cease unfair conduct from entities subject to infringement proceedings is subject to judicial review only ab extrinsic and is implemented only if the expressed motivation is clearly illogical or unreasonable. (2)

(1) Conforming: Council of State, Section VI, No. 11175 of 2023
(2)There are no precedents in the exact terms.
 

Source: Administrative Justice