Constitutional Court rules on the legitimacy of the contribution due by companies to the Italian Competition Authority

The legal provisions at issue establish that capital companies which have generated turnover equal or exceeding the €50 million threshold, as resulting from their most recent approved financial statements, shall pay a contribution for the functioning of AGCM equal to a certain percentage of their turnover, with a maximum amount being equal to one hundred times such percentage.

Responding to a referral from the Tax Justice Court of Udine raising doubts as to the compatibility of the abovementioned funding mechanism with the Italian Constitution, the Court reaffirmed its established line (including judgment no. 269/2017) that lawmakers have wide discretion in designing economic levies, provided they respect constitutional principles of equality and ability to pay.

The Court confirmed that the provision of a turnover threshold is a valuable parameter to determine the subjects towards which the Authority's activity is mainly focused. Furthermore, the Court rejected arguments that the levy at stake is misaligned with AGCM's enforcement patterns, noting that the Authority's work cannot be evaluated solely by counting formal decisions. Much of its activity spans sectors and tasks that do not always culminate in published measures. The €50 million threshold, the Court added, reasonably balances several aims: shielding smaller companies from disproportionate burdens, allocating costs to larger ones which are better able to bear them under the constitutional principle of solidarity, and charging those who both benefit most from an efficient market.

On alleged discrimination between Italian companies and foreign ones without a permanent establishment, the Court, noted that the law does not expressly provide for such a distinction, cited the Court of Justice of the EU (case C‑560/22), which confirms that Member States may fund their competition authorities through levies on companies with a seat or secondary establishment in the country. Within that fiscal competence, using a stable organization in Italy as a differentiating criterion is reasonable given the typically lower administrative burden posed by non-resident companies without a permanent establishment.

Addressing concerns over independence of the Authority and compliance with EU law, the Court concluded that the system preserves AGCM's autonomy and ensures adequate resources, consistent with the EU duty of sincere cooperation. A crucial safeguard is the cap on contributions, designed to prevent any single firm or small group from becoming “super-funders” and thereby risking real or perceived influence.

This ruling thus dispels doubts regarding the constitutionality of the mechanism governing the contribution for the functioning of the Authority.

It therefore remains that all capital companies with turnover exceeding €50 million must keep ensuring that they are compliant with payment of the contribution under Article 10, paragraphs 7-ter and 7-quater, within the prescribed terms, and in the relevant amount, which has recently been set at 0.055 per thousand of turnover by means of AGCM's resolution No 31871/2026.     

Authored by Luca Perfetti, Domenico Gullo, Marina Roma, and Flaminia Perna.