( Reference for a preliminary ruling - Consumer protection - Unfair business-to-consumer commercial practices in the internal market - Directive 2005/29/EC - Measures intended to combat such practices - Articles 11 and 13 - Procedures for infringement of the rules of consumer law - Compliance with a reasonable time limit - National legislation requiring the national authority to issue a statement of objections within a time limit of 90 days of knowledge of the essential elements of the infringement - Automatic annulment in its entirety of the decision of the national authority in the event of failure to comply with that time limit - Principle ne bis in idem - Revocation of the power to initiate new infringement proceedings in respect of the same facts - Principle of effectiveness - Rights of defence of undertakings )
In Case C‑510/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decision of 2 August 2023, received at the Court on 8 August 2023, in the proceedings
Trenitalia SpA
v
Autorità Garante della Concorrenza e del Mercato,
interested party:
Federconsumatori,
THE COURT (Second Chamber),
composed of K. Lenaerts, President of the Court, acting as President of the Second Chamber, F. Biltgen, President of the First Chamber, I. Jarukaitis, President of the Fourth Chamber, M.L. Arastey Sahún (Rapporteur), President of the Fifth Chamber, and J. Passer, Judge,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Trenitalia SpA, by P. Fattori, A. Lirosi and S. Spagnuolo, avvocati,
– the Autorità Garante della Concorrenza e del Mercato, by F. Sclafani, avvocato dello Stato,
– the Italian Government, by G. Palmieri, acting as Agent, L. Fiandaca and P. Gentili, avvocati dello Stato,
– the European Commission, by P. Kienapfel, P. Ondrůšek and D. Recchia, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 11 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
2 The request was submitted in the context of a dispute between Trenitalia and the Autorità Garante della Concorrenza e del Mercato (the national competition authority, Italy; ‘the AGCM’) concerning penalties imposed by it on Trenitalia on account of an unfair commercial practice.
Legal context
European Union law
Directive 2005/29
3 Article 1 of Directive 2005/29, entitled ‘Purpose’ provides:
‘The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.’
4 Article 5 of that directive, entitled ‘Prohibition of unfair commercial practices’, provides, in paragraph 1:
‘Unfair commercial practices shall be prohibited.’
5 Article 11 of that directive, entitled ‘Enforcement’, provides:
‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.
Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:
(a) take legal action against such unfair commercial practices;
and/or
(b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.
…
2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:
(a) to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices;
or
(b) if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,
even without proof of actual loss or damage or of intention or negligence on the part of the trader.
…’
6 Article 13 of that directive, entitled ‘Penalties’, provides:
‘Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. The penalties provided for must be effective, proportionate and dissuasive.’
Regulation No 2006/2004
7 Recital 7 of Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ 2004 L 364, p. 1), as amended by Directive 2005/29 (‘Regulation No 2006/2004’) was worded as follows:
‘The ability of competent authorities to cooperate freely on a reciprocal basis in exchanging information, detecting and investigating intra-Community infringements and taking action to bring about their cessation or prohibition is essential to guaranteeing the smooth functioning of the internal market and the protection of consumers.’
8 Article 1 of Regulation No 2006/2004, entitled ‘Objective’ provides:
‘This Regulation lays down the conditions under which the competent authorities in the Member States designated as responsible for the enforcement of the laws that protect consumers’ interests shall cooperate with each other and with the [European] Commission in order to ensure compliance with those laws and the smooth functioning of the internal market and in order to enhance the protection of consumers’ economic interests.’
9 Article 3 of that regulation, entitled ‘Definitions’, provided:
‘For the purposes of this Regulation:
(a) “laws that protect consumers’ interests” means the Directives as transposed into the internal legal order of the Member States and the Regulations listed in the Annex;
…’
10 Under Article 9 of that regulation, entitled ‘Coordination of market surveillance and enforcement activities’:
‘1. Competent authorities shall coordinate their market surveillance and enforcement activities. They shall exchange all information necessary to achieve this.
2. When competent authorities become aware that an intra-Community infringement harms the interests of consumers in more than two Member States, the competent authorities concerned shall coordinate their enforcement actions and requests for mutual assistance via the single liaison office. In particular they shall seek to conduct simultaneous investigations and enforcement measures.
…’
11 The annex to that regulation referred, in point 16, to Directive 2005/29.
12 Regulation No 2006/2004 was repealed, with effect from 17 January 2020, by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ 2017 L 345, p. 1).
Italian law
Consumer Code
13 Article 27 of decreto legislativo n. 206 – Codice del consumo (Legislative Decree No 206 on the Consumer Code) of 6 September 2005 (Ordinary Supplement to GURI No 235 of 8 October 2005), in the version applicable to the dispute in the main proceedings, entitled ‘Administrative and judicial protection’, provides:
‘1. The [AGCM] shall exercise the powers regulated by this article, including in its capacity as the authority responsible for the implementation of [Regulation No 2006/2004], subject to the limits set out in applicable legal provisions.
…
2. The [AGCM], either of its own motion or at the request of any interested person or organisation, shall prohibit the continuation of improper commercial practices and shall undo the effects thereof. To that end, the [AGCM] shall make use the investigative and enforcement powers provided for in [Regulation No 2006/2004], including in respect of infringements or offences having no cross-border dimension. …
…
13. For administrative fines resulting from infringements of this decree, the provisions of Title I, Section I, and of Articles 26, 27, 28 and 29 of [legge n. 689 – Modifiche al sistema penale (Law No 689 amending the criminal justice system) of 24 November 1981, in the version applicable to the dispute in the main proceedings (‘Law No 689/81’)] shall be complied with in so far as they are applicable. …’
Law No 689/81
14 Law No 689/81 governs the general scheme of administrative fines and provides, in Article 14, entitled ‘Statement of objections and notification’:
‘Wherever possible, the infringement or offence shall be communicated immediately both to the offender and to any person who is jointly and severally liable for payment of the sum owed on account of the infringement or offence.
In the event that immediate communication is not given to any or all of the persons referred to in the preceding paragraph, the constituent elements of the infringement or offence shall be notified to the parties concerned within a period of 90 days, where those parties are resident in the territory of the [Italian] Republic, or within a period of 360 days, where they are resident abroad, beginning on the date on which the [infringement or offence] is established.
Where the documents relating to the infringement or offence are sent to the competent authority by order of the court, the periods referred to in the preceding paragraph shall commence on the date of receipt [of those documents].
…’
The dispute in the main proceedings and the question referred for a preliminary ruling
15 Trenitalia is the main rail passenger transport management company operating in Italy. It provides regional as well as medium and long-distance rail transport services, the latter category including, inter alia, high-speed rail services.
16 Between 2011 and 2016, the AGCM received a number of reports and complaints from consumers, from the Autorità di regolazione dei trasporti (Transport Regulatory Authority, Italy) and from the consumer association Federconsumatori, concerning the online sale of train tickets. On 21 October 2016, the AGCM placed on file the results of ticket purchase simulations carried out by its officials between 26 August and 30 September 2016.
17 On 15 November 2016, the AGCM notified Trenitalia of its decision to initiate a procedure seeking to establish an infringement in the field of consumer protection law and carried out an inspection at the company’s headquarters, which resulted in documents being seized. Trenitalia’s advisers were given the opportunity to access the investigation file and to put forward arguments in defence. The company that had supplied the computer system which Trenitalia used was also the subject of an inspection.
18 By decision of 19 July 2017, the AGCM established the existence of an unfair commercial practice by Trenitalia in the online sale of train tickets. According to the AGCM, the travel solutions offered to consumers by the online site which Trenitalia was using to provide information about tickets and to enable searches and ticket purchases to be carried out entailed primarily the use of high-speed trains, whereas, for the same times, it would have been possible to use regional trains, which are much less expensive but were not shown. Consequently, the AGCM ordered Trenitalia to cease that practice, granted it a period of time in which to identify the measures required to do so and, having regard to the severity and duration of the infringement, imposed on Trenitalia a fine of EUR 5 million.
19 Trenitalia challenged the AGCM’s decision of 19 July 2017 before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which is the referring court, relying, inter alia, on the late commencement of the inter partes investigation stage of the procedure which gave rise to that decision.
20 In that regard, the referring court states that, according to the recent case-law of the Consiglio di Stato (Council of State, Italy), proceedings conducted by the AGCM in the field of consumer protection must comply with Article 14 of Law No 689/81, under which that authority must, if it is not to lose its power to impose penalties, commence the inter partes investigation stage of the procedure by issuing a statement of objections within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement or offence (‘the period at issue’).
21 The starting point of the period at issue is subject to judicial review in the context of which the administrative court is to carry out a retrospective assessment and ascertain from which point in time the information available to the AGCM at a given time was sufficient for it to be required to issue the statement of objections and thus commence the inter partes investigation stage of the procedure. Any failure to issue the statement of objections within that period would entail the annulment, in its entirety, of the AGCM’s decision adopted at the end of the infringement procedure. Moreover, in accordance with the principle ne bis in idem, that authority would no longer be in a position to initiate new infringement proceedings in respect of that same practice, even if the undertaking concerned never brought an end to it.
22 According to the referring court, the application of the period at issue undermines the AGCM’s autonomy by requiring it to hear the cases before it in a purely chronological order, without being able to take account of the particular features of each case. Moreover, in view of the great complexity of the AGCM’s activities, in particular during investigations into the practices of large economic operators, excessive anticipation of the commencement of the inter partes investigation stage of the procedure would increase the risk that that authority will not succeed in gathering the evidence that is necessary and sufficient to establish the alleged infringement or offence.
23 In that context, the referring court envisages a parallel with penalties adopted in competition matters, wherein the competent authority is required to conclude infringement proceedings within a ‘reasonable period of time’. According to the referring court, the latter period also applies, by analogy, to consumer protection, with the result that the period at issue, which in any event does not follow from EU consumer protection law, has to be disregarded.
24 Furthermore, the referring court argues that since the undertaking suspected of unfair commercial practices is not required, under national law as interpreted by the Consiglio di Stato (Council of State), to establish that it has suffered damage as a result of the commencement of the inter partes investigation stage of the procedure after expiry of the period at issue, it follows that there is an irrebuttable presumption that the rights of defence of that undertaking have been infringed solely because that period has expired.
25 In any event, the application of a period of time the starting point of which would depend on the individual case would not be compatible with the principle of the protection of legitimate expectations, to which the undertakings penalised should be entitled.
26 In the light of those considerations, the referring court has doubts as to the compatibility with EU law of the application of the period at issue to proceedings for the investigation of infringements penalised by the national provisions adopted pursuant to Directive 2005/29.
27 In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 11 of Directive [2005/29], read in the light of the principles of consumer protection and the effectiveness of administrative action, be interpreted as meaning that it precludes national legislation, such as that arising from the application of Article 14 of [Law No 689/81] – as interpreted in the most recent case-law – which requires the [AGCM] to initiate the investigation procedure with a view to establishing an improper (unfair) commercial practice within a time limit of 90 days, starting from the moment the [AGCM] has knowledge of the essential elements of the infringement, [which could be no more than those set out in] the first report of the infringement?’
Consideration of the question referred
28 As a preliminary point, it is important to recall that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it and consider provisions of EU law which the national court has not to in its question (see, to that effect, judgment of 30 January 2024, Direktor na Glavna direktsia ‘Natsionalna politsia’ pri MVR – Sofia, C‑118/22, EU:C:2024:97, paragraph 31 and the case-law cited).
29 In the present case, the referring court, although it confined its question to Article 11 of Directive 2005/29, also states that failure to observe the period at issue entails the annulment in its entirety of the final decision adopted by the AGCM and the revocation of its power to initiate new proceedings in respect of the same facts. However, in so far as Article 13 of that directive concerns the determination, by Member States, of the penalties applicable to infringements of the national provisions adopted pursuant to that directive, the question referred must be answered also in the light of that article 13.
30 In order to provide it with a fully useful answer, it is therefore appropriate to conclude that, by its question, the referring court asks, in essence, whether Articles 11 and 13 of Directive 2005/29 must be interpreted as precluding national legislation which, in proceedings for a finding establishing an unfair commercial practice by a national authority responsible for the enforcement of consumer protection laws, first, requires that authority to commence the inter partes investigation stage of those proceedings by notifying the statement of objections to the undertaking concerned within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first report of the infringement, and, second, penalises failure to observe that period by annulling in its entirety the final decision of that authority at the end of the infringement proceedings and revoking that authority’s power to initiate new infringement proceedings in respect of that same practice.
31 In accordance with the first subparagraph of Article 11(1) of Directive 2005/29, Member States must ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of that directive in the interest of consumers. Article 11(2)(a) provides that Member States are to confer on administrative authorities powers enabling them, in cases where they deem such measures to be necessary, taking into account all the interests involved and in particular the public interest, to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of unfair commercial practices.
32 In addition, Article 13 of the directive provides that Member States must lay down penalties for infringements of national provisions adopted in application of that directive and must take all necessary measures to ensure that they are enforced, with those penalties being effective, proportionate and dissuasive.
33 As follows from a combined reading of Article 1 and the first subparagraph of Article 11(1) of Directive 2005/29, the purpose of that directive is to achieve a high level of consumer protection and, to that end, to ensure that unfair commercial practices are effectively combated in the interests of consumers (see, to that effect, judgments of 13 September 2018, Wind Tre and Vodafone Italia, C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 54, and of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C‑208/21, EU:C:2023:64, paragraph 81).
34 However, that directive restricts itself to providing, in Article 5(1) thereof, that unfair commercial practices ‘shall be prohibited’, thus leaving the Member States a margin of discretion as to the choice of national measures intended, in accordance with Articles 11 and 13 of that directive, to combat those practices, on condition that they are adequate and effective and that the penalties thus laid down are effective, proportionate and dissuasive (see, to that effect, judgments of 19 September 2018, Bankia, C‑109/17, EU:C:2018:735, paragraph 31, and of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C-208/21, EU:C:2023:64, paragraph 79).
35 It follows that, in the absence of specific EU rules governing procedural time limits designed to ensure that adequate and effective means exist to combat unfair commercial practices and to penalise them in an effective, proportionate and dissuasive manner, it is for Member States to establish and apply national procedural rules in that field (see, by analogy, judgments of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraphs 43 to 45; of 13 July 2023, Napfény-Toll, C‑615/21, EU:C:2023:573, paragraph 34; and of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 303).
36 However, while establishing and applying those rules falls within the competence of the Member States, the latter must exercise that competence in a manner consistent with EU law and, having regard to the principle of effectiveness, may not render the implementation of EU law impossible in practice or excessively difficult (see, to that effect, judgments of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 46, and that of 13 July 2023, Napfény-Toll, C‑615/21, EU:C:2023:573, paragraphs 35 and 47).
37 It is appropriate to take the view that it is compatible with EU law to lay down reasonable procedural time limits for national authorities responsible for the enforcement of consumer protection laws to combat unfair commercial practices. Such reasonable time limits are established in the interests both of the undertakings concerned and of those authorities, in accordance with the principle of legal certainty, and are not liable to make it in practice impossible or excessively difficult to apply EU law (see, by analogy, judgments of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 28, and of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 48).
38 Thus, national rules laying down procedural time limits for the establishment of infringements and the imposition of penalties by the national authorities responsible for the enforcement of consumer protection laws to combat unfair commercial practices must, in compliance with the principle of legal certainty, seek to ensure that cases are dealt with within a reasonable time while not having the effect of compromising the effective application of Directive 2005/29 in the domestic legal system (see, by analogy, judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 49).
39 In order to determine whether national rules on time limits observe such a balance, it is necessary to take into consideration, inter alia, the duration of the period concerned and all the detailed rules for its application, such as the date on which it starts to run, the mechanism adopted to start the period running, and that for suspending or interrupting it (see, to that effect, judgments of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 50, and of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 30).
40 Account must also be taken of the specific features of cases concerning the fight against unfair commercial practices falling within the scope of Directive 2005/29 and, in particular of the fact that those cases may require a complex factual and economic analysis (see, by analogy, judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 51).
41 Furthermore, for the purpose of setting reasonable time limits for the procedures conducted by the national authorities responsible for the enforcement of consumer protection laws, with a view to combating unfair commercial practices and penalising them, the principle of legal certainty requires the Member States to put in place a system of time limits that is sufficiently precise, clear and foreseeable to enable all the parties involved to know precisely the extent of the obligations which the rules in question impose on them and to take steps accordingly (see, by analogy, judgments of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 49; of 3 June 2021, Jumbocarry Trading, C‑39/20, EU:C:2021:435, paragraph 48; and of 7 March 2024, Die Länderbahn and Others, C‑582/22, EU:C:2024:213, paragraph 66).
42 In that context, it follows from the case-law of the Court relating to infringement proceedings brought by the Commission under Articles 101 and 102 TFEU that compliance with the principle that action must be taken within a reasonable period is required, in principle, at every stage of those proceedings (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 199 and 230, and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 37 to 39).
43 For similar reasons, when setting procedural time limits for the establishment of infringements and the imposition of penalties by the national authorities responsible for the enforcement of consumer protection laws, Member States may lay down not only general limitation rules applicable to infringement proceedings as a whole, but also, where appropriate, time limits for the conduct of certain stages of those proceedings, such as the stage prior to communication of the statement of objections to the undertaking concerned, provided that the time limits in question satisfy the requirements referred to in paragraphs 38 to 41 above.
44 In that regard, it must be borne in mind, first, that the reasonableness of the duration of that phase is, in principle, to be appraised in the light of the circumstances specific to each case (see, to that effect, judgments of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 82). Specifically, the duration of a procedural time limit for that phase must be sufficient in practical terms to ensure its proper conduct (see, to that effect, judgments of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 29, and of 9 September 2020, Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent application – Time limit for bringing proceedings), C‑651/19, EU:C:2020:681, paragraph 57).
45 It should also be borne in mind that, in proceedings for infringement of Articles 101 and 102 TFEU conducted by the Commission, the preliminary investigation stage, covering the period up to the statement of objections, is intended not only to enable the Commission to gather all the relevant evidence confirming that there has or has not been an infringement of the competition rules, but also to adopt a position on the course which the procedure is to follow and on the subsequent action to be taken in respect thereof (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 182, and of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 113).
46 Although the complexity of a competition procedure may justify extending its preliminary stage over a long period of time (see, to that effect, judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 62, and of 17 November 2022, Irish Wind Farmers’ Association and Others v Commission, C‑578/21 P, EU:C:2022:898, paragraph 88), the Commission is not, however, allowed to persist in refraining from taking action during that phase of the procedure (see, to that effect, judgments of 18 March 1997, Guérin automobiles v Commission, C‑282/95 P, EU:C:1997:159, paragraph 36, and of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 81).
47 Moreover, respect for the rights of the defence is a fundamental principle of EU law which must be fully observed in the context of administrative procedures under EU law. In proceedings for infringement of the competition rules, it is the statement of objections which constitutes the essential safeguard in that regard (see, to that effect, judgments of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, EU:C:2017:819, paragraphs 139 and 140; of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 60; and of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 56).
48 It follows that the considerations set out in paragraphs 45 to 46 above are also relevant in the context of an administrative procedure conducted, at national level, by a national authority responsible for the enforcement of consumer protection laws in order to punish an infringement of EU legislation in that field.
49 In order effectively to fulfil their obligation to implement EU consumer protection laws, the national authorities responsible for the enforcement of the relevant laws must be able to give differing degrees of priority to the complaints brought before them, by having, for that purpose, a broad discretion (see, by analogy, judgments of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 46, and of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraphs 72 and 83).
50 Second, Regulation No 2006/2004, which was applicable at the time the inter partes stage of the procedure in the main proceedings commenced, and then Regulation 2017/2394, established a cooperation and coordination mechanism under which the national authorities responsible for the enforcement of consumer protection laws may have to cooperate and coordinate with each other and with the Commission for the purpose of combating certain categories of infringements of the acts referred to in the annexes to each of those two regulations, which list Directive 2005/29.
51 In accordance with Article 9(1) and (2) of Regulation No 2006/2004, competent authorities were to coordinate their market surveillance and enforcement activities by seeking to conduct simultaneous investigations and enforcement measures in respect of consumer protection laws. According to recital 7 of that regulation, the ability of competent authorities to cooperate freely on a reciprocal basis in exchanging information, detecting the infringements covered by that regulation, investigating them and taking action to bring about their cessation or prohibition is essential to guaranteeing the smooth functioning of the internal market and the protection of consumers.
52 It follows both from the very purpose of the stage prior to the statement of objections in consumer protection infringement proceedings and from the broad discretion which a national authority responsible for the enforcement of the relevant laws must have in setting priorities for its procedures in that field that, during that phase of the procedure, such an authority must be in a position not only to carry out all the preliminary measures of inquiry and the often complex factual and legal assessments which are necessary in order to ascertain whether the commencement of the inter partes investigation stage is justified, but also to choose, according to the degree of priority which it wishes to give, in the exercise of its operational independence, to an ongoing infringement procedure, the most appropriate time for commencing, where applicable, the inter partes investigation stage of that procedure.
53 Thus, a national authority responsible for the enforcement of consumer protection laws must have the possibility of temporarily postponing the commencement of the inter partes investigation stage in a given procedure, even when it has already established the existence of the essential elements of the alleged infringement. Such a possibility is consistent with the objective of ensuring that the authority concerned is able to treat adequately all the infringement proceedings brought before it. It is also likely to contribute to an efficient use of the available resources and to foster appropriate cooperation in the cooperation network between national authorities responsible for the enforcement of consumer protection laws established by Regulation No 2006/2004 and subsequently by Regulation 2017/2394. Nevertheless, that temporary postponement cannot amount to a failure to observe the reasonable period within which the stage prior to the statement of objections in infringement proceedings must be concluded.
54 Third, in the exercise of its procedural autonomy, a Member State must ensure not only that EU legislation on consumer protection and the prosecution and punishment of infringements thereof are fully effective, but also that fundamental rights are observed, in particular the rights of the defence of the undertakings concerned by infringement proceedings (see, to that effect, judgments of 7 December 2010, VEBIC, C‑439/08, EU:C:2010:739, paragraph 63, and of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 98).
55 In that regard, the Court has already held that the excessive duration of the stage prior to the statement of objections may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by adversely affecting their rights of defence during the inter partes investigation stage of the infringement proceedings against them. The more time that elapses between a preliminary investigation measure and the notification of the statement of objections, the more unlikely it becomes that any exculpatory evidence relating to the infringements set out in the statement of objections can be obtained (see, to that effect, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 49).
56 While reasonable procedural time limits are thus intended, inter alia, to ensure the effective exercise of the rights of defence of undertakings which are the subject of infringement proceedings, the fact remains that national legislation laying down procedural time limits for the imposition of penalties by the national authorities responsible for the enforcement of consumer protection laws in order to combat unfair commercial practices and penalise them must be adapted to the specific features of EU law in that field and the objectives of its application by the persons concerned, so as not to prejudice the full effectiveness thereof (see, by analogy, judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 52).
57 In the present case, as is apparent from the order for reference, the AGCM must commence the inter partes investigation stage of the procedure by issuing the statement of objections within a fixed period of 90 days, starting from the time the essential elements of the alleged infringement are established. Furthermore, failure to observe the period at issue results, first, in the automatic annulment, in its entirety, of the final decision adopted by the AGCM at the end of the infringement proceedings, in so far as it concerns both the cessation of the unfair commercial practice and the penalties imposed on the undertaking concerned. Second, that authority is, by virtue of the principle ne bis in idem, definitively prevented from initiating new infringement proceedings in respect of the same unfair commercial practice. As is apparent from the documents before the Court, the purpose of those rules is to safeguard the rights of defence of undertakings during infringement proceedings against them by informing them in good time of the objections raised against them.
58 As the Advocate General observed, in essence, in points 107 to 109 and 114 of his Opinion, the application of the period at issue entails the risk that the AGCM may have to treat all infringement proceedings before it without any differentiation, taking into consideration not the circumstances specific to each procedure, but by following only a chronological order, thus preventing it from establishing and implementing priorities for its consumer protection procedures. That authority could thus be forced to initiate investigative procedures on uncertain factual and legal bases or give priority to certain categories of cases which its available resources allow it to handle after the preliminary investigation stage, where appropriate, to the detriment of cases which are particularly complex and harmful to the interests of consumers. Such a prejudice to the AGCM’s operational independence is all the more likely in a situation in which the starting point of the period, whereby, moreover, the mechanism to start the period running appears not to be very precise, clear or foreseeable either for that authority or for the undertaking concerned, coincides with the first report of the alleged infringement to that authority, which is then obliged to investigate the case immediately.
59 In addition, the consequences of failing to observe the period at issue are liable to prevent the AGCM from cooperating fully in the network established by Regulation No 2006/2004 and subsequently by Regulation 2017/2394. As the AGCM and the Commission rightly submitted in their written observations, that authority may be called upon to act in cross-border situations on the basis of a report issued by an authority of another Member State or the Commission. The period at issue might not prove sufficient to enable the AGCM to cooperate effectively with the authorities of other Member States and with the Commission, a fortiori where the commercial practice concerned had already been the subject of a report in Italy, thereby triggering the commencement of the period at issue.
60 Furthermore, it should be noted, first, that the rights of defence of undertakings subject to infringement proceedings are not, in any event, liable to be infringed solely because the period at issue was not observed.
61 As the Advocate General stated, in essence, in point 131 of his Opinion, while it is admittedly important to ensure that an undertaking’s rights of defence are not irremediably impaired during the preliminary stage of infringement proceedings concerning unfair commercial practices, such an undertaking will, in any event, continue to be able to exercise its rights of defence effectively, provided that it is guaranteed that no decision may be taken in its respect by the national competition authority without that authority having proceeded to an inter partes investigation stage during which that undertaking will have been able to exercise its rights of defence fully.
62 Second, the Court has already held, in the context of the activities of national competition authorities seeking to punish infringements of EU competition law, that national rules on limitation which, for reasons inherent to them, are systematically an obstacle to the imposition of effective and dissuasive penalties for infringements of EU competition law are liable to render the application of the rules of EU competition law impossible in practice or excessively difficult. Consequently, it held that national legislation laying down a limitation period, the application of which was, in the light of the high degree of complexity of competition law cases, liable to create a systemic risk that acts constituting infringements of that law would go unpunished, was incompatible with the principle of effectiveness (see, to that effect, judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraphs 53 and 56).
63 In view of the objective of Directive 2005/29 of achieving a high level of consumer protection and ensuring that unfair commercial practices are effectively combated in the interests of consumers, recalled in paragraph 33 above, the considerations set out in the preceding paragraph of the present judgment are also relevant in the context of the activities of the national authorities responsible for the enforcement of consumer protection laws.
64 As the Advocate General observed, in essence, in points 137 to 139 of his Opinion, the consequences which the national legislation at issue in the main proceedings attaches to the failure to observe the period at issue appear capable of giving rise to a systemic risk that acts constituting infringements of the prohibition of unfair commercial practices introduced by Article 5(1) of Directive 2005/29 would go unpunished. That national legislation could thus mean that a significant number of proven infringements of that provision are not the subject of effective and dissuasive penalties. In addition, the fact that it is impossible for the AGCM to initiate new infringement proceedings in order to adopt such penalties could, in fact, encourage undertakings to continue unfair commercial practices, thereby seriously undermining the effective implementation of EU consumer protection rules by national authorities responsible for the enforcement of consumer protection laws.
65 In those circumstances, in the light of the considerations set out in paragraphs 58, 59 and 64 above, the application of the period at issue to the AGCM’s activities is liable to have the consequence of undermining the operational independence of that authority and of creating a systemic risk that acts constituting infringements of the prohibition of unfair commercial practices introduced by Article 5(1) of Directive 2005/29 would go unpunished.
66 Moreover, it must be stated that an interpretation of national law according to which the consequences of the AGCM’s failure to observe the period at issue would be limited to that authority losing its power to impose penalties, which thus remains in a position to order an undertaking to cease an unfair commercial practice, would not, however, be capable of ruling out the existence of such a risk of impunity and of ensuring that Directive 2005/29 is applied effectively. Such limits on the action of a national authority responsible for the enforcement of consumer protection laws would be incompatible with the Member States’ obligation to adopt and ensure that effective and dissuasive penalties are enforced, as laid down in Article 13 of that directive.
67 In so far as, according to the referring court, the application of the period at issue in the main proceedings is the result of a certain interpretation of national law by a higher court, it should also be added that, in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires national courts to interpret, to the greatest extent possible, their national law in conformity with EU law (judgments of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 70 and the case-law cited, and of 12 October 2023, Z. (Right to obtain a duplicate of the credit agreement), C‑326/22, EU:C:2023:775, paragraph 34 and the case-law cited).
68 When applying national law, those courts are therefore required to interpret it, to the greatest extent possible, in the light of the text and the purpose of the provision of EU law applicable, taking into consideration the whole body of national law and applying the interpretative methods recognised by national law, with a view to ensuring that those provisions are fully effective and to achieving an outcome consistent with the objective which they pursue (see, to that effect, judgments of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 71 and the case-law cited, and of 22 September 2022, Vicente (Action for the recovery of lawyers’ fees), C‑335/21, EU:C:2022:720, paragraph 72 and the case-law cited).
69 It is thus for the referring court to interpret, to the greatest extent possible, its national law, in particular Article 27(13) of Legislative Decree No 206 on the Consumer Code, in the version applicable to the case in the main proceedings, and Article 14 of Law No 689/81, in a manner consistent with EU law with a view to ensuring that it is fully effective. The obligation to interpret national law in conformity with EU law requires that court to change established case-law, where necessary, if it is based on an interpretation of domestic law that is incompatible with the objectives of a provision of EU law and, to that effect, to disapply, on its own authority, any interpretation adopted by a higher, or even supreme, court which it must follow in accordance with its national law, if that interpretation is not compatible with EU law (see, to that effect, judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 78 and the case-law cited; of 21 January2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 58; and of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraphs 108 and 110).
70 In the light of all the foregoing considerations, the answer to the question referred is that Articles 11 and 13 of Directive 2005/29, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which, in proceedings for a finding establishing an unfair commercial practice by a national authority responsible for the enforcement of consumer protection laws, first, requires that authority to commence the inter partes investigation stage of those proceedings by notifying the statement of objections to the undertaking concerned within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first report of the infringement, and, second, penalises failure to observe that period by annulling in its entirety the final decision of that authority at the end of the infringement proceedings and revoking that authority’s power to initiate new infringement proceedings in respect of that same practice.
Costs
71 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Articles 11 and 13 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), read in the light of the principle of effectiveness,
must be interpreted as precluding national legislation which, in proceedings for a finding establishing an unfair commercial practice by a national authority responsible for the enforcement of consumer protection laws, first, requires that authority to commence the inter partes investigation stage of those proceedings by notifying the statement of objections to the undertaking concerned within a period of 90 days, starting from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first report of the infringement, and, second, penalises failure to observe that period by annulling in its entirety the final decision of that authority at the end of the infringement proceedings and revoking that authority’s power to initiate new infringement proceedings in respect of that same practice.
