On September 16, 2019, the TAR Lazio rejected the application for annulment filed by MP Silva S.r.l. (“MP Silva”) against an ICA decision that had denied the applicant access to the file in an Article 101 TFEU investigation.[1]

Factual background

In April 2019 the ICA fined MP Silva, IMG and B4 Capital in the overall amount of €67 million for violating Article 101 TFEU.[2] According to the ICA, MP Silva, IMG and B4 Capital agreed on tenders for the assignment of broadcasting rights for football matches in tournaments organized by the top Italian football league, the Lega Nazionale Professionisti Serie A in countries other than Italy (so-called “international rights”).

On October 5, 2017, one of the parties submitted a leniency application to the European Commission and, simultaneously, a summary application to the ICA.

On June 4, 2018 the ICA notified the parties concerned of its Statement of Objections, concerning two separate cartel agreements. MP Silva repeatedly requested access to the file of the proceedings. The ICA partially rejected MP Silva’s requests.

On February 22, 2019, the ICA issued a second Statement of Objections, under which the parties were accused of participating instead in a single and continuous infringement. Five days later 2019 MP Silva reiterated its request to access the file of the proceedings, also with respect to the documents to which the ICA previously refused to grant access. More specifically, MP Silva requested access to: (a) the oral statements submitted by the leniency applicant, and (b) certain documents that, in its view, were crucial to allow it fully to exercise its right of defense (especially in light of the second statement of objections).

The ICA rejected again MP Silva’s request on the following grounds: (a) in relation to the documents that MP Silva requested for the first time on February 27, 2019, confidentiality reasons and the irrelevance for the purpose of the proceedings; (b) regarding the documents that the ICA already denied access to in the past, the absence of new elements of law or fact. MP Silva then challenged in court the ICA’s refusal.

The judgment

The TAR Lazio upheld the ICA decision, based on the following statement of reasons:

in antitrust proceedings, the need to ensure the equality of arms and to protect the rights of defense must be balanced against the confidentiality of information provided in the context of a leniency application, in order not to undermine the attractiveness of the ICA’s leniency program;

as MP Silva reiterated previous requests to access the file without new supporting arguments, and the ICA reiterated the previous denials on the same grounds, MP Silva’s previous failure to challenge in court the ICA’s previous access refusal was held unjustified, and even capable of proving that: (a) access to such documents was not necessary for MP Silva in order to defend itself against the first Statement of Objections; (b) the leniency application did not affect the ICA’s allegations as stated in the second Statement of Objections. Therefore, those documents were not necessary for MP Silva’s defense;

access to documents that, in the ICA’s view, are outside the scope of the investigation can be denied independently of the existence of confidentiality reasons. This follows from the principle that access to the file aims at protecting an interest strictly linked to the relevant documents for the purposes of the requesting party’s defense. In the absence of a relevant interest to be protected, access can be denied;

access to documents that, according to the ICA, are clearly outside the scope of the investigation can be granted only in so far as the party requesting access to the file can prove that the ICA made a “gross mistake” in so characterizing them.

[1]              TAR Lazio, Judgment No. 10985/2019.

[2]              International Broadcasting Rights for the Main Football Competitions in Italy (Serie A, Serie B, Italian Cup and Italian Super Cup) (Case I814), ICA Decision of April 24, 2019.