On 29 November 2024, the Italian supreme administrative Court (the “Council of State”) dismissed an appeal by Ryanair DAC and Ryanair Holdings Plc (jointly, “Ryanair”). The appeal sought to preclude the Italian Competition Authority (“AGCM”) from being able “to process, consult, view, use, copy and/or transmit to third parties all Ryanair documents seized” during a joint dawn raid carried out by the AGCM and the Irish Competition Authority (“CCPC”) at the airline premises in Dublin.

Ryanair had challenged the joint AGCM/CCPC dawn raid, arguing that the AGCM request for assistance to the CCPC (adopted pursuant to Article 22 of EU Regulation 1/2003 and dating back to January 2024) lacked (i) formal approval by AGCM Board; and (ii) a sufficient ground of motivation. 

Therefore, according to Ryanair, since the prodromic AGCM request was unlawful, all documents seized were to be considered inadmissible for the purpose of the AGCM investigation into Ryanair's alleged abuse of dominance in the Italian market (see our previous report here).

The Italian Council of State dismissed the appeal, establishing two (potentially) groundbreaking principles when it comes to cooperation between national competition authorities under EU Regulation 1/2003:

• the AGCM's request to the CCPC to seize Ryanair Dublin premises did not require a formal approval by the AGCM Board, as requests made by the AGCM (under Article 22 of EU Regulation 1/2003) are subject solely to verification of their compliance with relevant legal standards (i.e., the EU provision), which, in the case at stake, was fully respected by the AGCM (since Board authorisation is not required by EU Regulation 1/2003); and
• the legitimacy of dawn raids conducted through cooperation between competition authorities of EU Member States is subject to the jurisdiction of the requested country. Therefore, in this case, it is for the Irish courts to determine whether the dawn raid was conducted unlawfully under the applicable Irish legislative provisions.

According to the Council of State, the ICA request did not diminish Ryanair’s right of defense, as requests made by national competition authorities under Article 22 of EU Regulation 1/2003 are mere “collaboration requests” and therefore not capable of impacting the legal position of a company per se, but rather require a positive follow-up action by the requested authority.

Following the Council of State's judgment, the matter now returns to the Italian administrative court of first instance (“TAR Lazio”), which, whilst being heavily bound by the Italian Council of State judgment, may still require an interpretation of Article 22 of EU Regulation 1/2003 by the European Court of Justice via a preliminary ruling under Article 267 TFEU.

Although the Italian dispute over Ryanair's Dublin dawn raid remains unresolved, the Council of State’s ruling appears to create further legal uncertainty rather than clarify a crucial procedural issue in antitrust law. 

In fact, the risk of triggering conflicting national jurisdictional reviews remains high. A concrete example of such risk may soon emerge from the Irish judges, who have already been called to address the same issue by Ryanair. It will be a matter of time to see whether their interpretation differs from that of the Italian Council of State. 

For further information, please contact Federico Marini Balestra, Lucia Antonazzi and Chiara Horgan.

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