A. Menarini Diagnostics S.r.l. v. Italy

Information Note on the Court’s case-law No. 144

August-September 2011

A. Menarini Diagnostics S.r.l. v. Italy - 43509/08

Judgment 27.9.2011 [Section II]

Article 6

Criminal proceedings

Article 6-1

Access to court

Judicial review by courts exercising full jurisdiction of administrative decision taken by independent authority: no violation

Facts – In 2001 the AGCM, the independent regulatory authority in charge of competition, investigated the Italian applicant company for unfair competition. In a decision of April 2003 it fined the company six million euros for unfair competition on the market for diabetes diagnostic tests, stating that the penalty should serve as a deterrent to all pharmaceutical companies. All the company’s appeals against that decision to the administrative court and the Consiglio di Stato were rejected.

Law – Article 6 § 1

(a)  Applicability – Having regard to the various aspects of the case and their respective weight in the matter, the Court considered that the fine imposed on the applicant company was a criminal penalty, so the criminal limb of Article 6 § 1 was applicable.

(b)  Merits – The impugned penalty was not imposed by a court in adversarial proceedings but by the AGCM, an independent administrative authority. The applicant company had been able to challenge the penalty before the administrative court and to appeal against that court’s decision to the Consiglio di Stato. According to the Court’s case-law, these bodies met the standards of independence and impartiality required of a court. The administrative courts had examined the applicant company’s various allegations, in fact and in law. They had thus examined the evidence produced by the AGCM. The Consiglio di Stato had also pointed out that where the administrative authorities had discretionary powers, even if the administrative court did not have the power to substitute itself for an independent administrative authority, it was able to verify whether the administration had made proper use of its powers. As a result, the role of the administrative courts had not been limited simply to verifying lawfulness. They had been able to verify whether, in the particular circumstances of the case, the AGCM had made proper use of it powers. They had been able to examine whether its decisions had been substantiated and proportionate, and even to check its technical findings. Moreover, the review had been carried out by courts having full jurisdiction, in so far as the administrative court and the Consiglio di Stato were able to verify that the penalty was fit the offence, and they could have changed it if necessary. In particular the Consiglio di Stato, had gone beyond a “formal” review of the logical coherency of the AGCM’s reasoning and made a detailed analysis of the appropriateness of the penalty, having regard to the relevant parameters, including its proportionality. The decision of the AGCM had thus been reviewed by judicial bodies having full jurisdiction.

Conclusion: no violation (six votes to one).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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