The Italian State Council to tip the scale in favor of a deeper judicial review of antitrust misconduct.

In the Italian public enforcement matter La Roche-Novartis v. Antitrust Authority, the State Council (the administrative court of second instance, which has exclusive jurisdiction on antitrust cases) recently issued a hallmark decision (4990/2019) addressing a long-debated thorny issue: the breadth of the administrative court's judicial review of the facts underlying antitrust fines imposed by the Antitrust Authority as part of an investigation.

The State Council focused on how to perform an effective judicial review so as to ensure that the Antitrust Authority and the fined entity stand against each other on a level playing field under the umbrella of due process principles and without undermining the independence of a public body.

Consistent with a solid line of European Court of Justice's precedents, the solution to the equation for the State Council is to perform an in-depth review by "directly and wholly addressing the underlying question of fact in order to establish whether it is intrinsically true." The judicial tool to achieve such a goal is "a whole court review based on a soundness stress-test" of the facts relied upon by the Antitrust Authority.

In addition, the State Council tackled another crucial topic: the interplay between the administrative court's judicial review in public enforcement cases and the judicial review performed by civil courts in private enforcement via follow-on or stand-alone actions.

In the State Council's view, where public enforcement is concerned, the administrative court's thorough factual review of anticompetitive conduct, as outlined above, is necessary to counterbalance the civil courts' lack of powers in private enforcement follow-on proceedings to independently review any such alleged misconduct as found by the Antitrust Authority. On the contrary, in stand-alone actions only private enforcement is concerned and thus civil courts are entrusted with extensive powers to assess alleged antitrust-sensitive conduct.

Such interpretation, noted the State Council, is expected to safeguard the due exercise of judicial review powers in the judiciary system as a whole, while ultimately placing private enforcement follow-on and stand-alone actions on equal-footing for purposes of having a judicial body fully assess alleged anticompetitive conduct.