Abuse of dominance within the Italian market, or in a substantial part of it, is prohibited by Article 3 of the Competition Act,2 which closely resembles Article 102 of the Treaty on the Functioning of the European Union (TFEU). Article 3 does not provide a definition of abuse, but lists examples of abusive conduct.3
According to Article 1(2) of the Competition Act and Article 3(1) of Regulation (EC) No. 1/2003, if the Italian Competition Authority (ICA) applies Article 3 to abuses that affect intra-EU trade, it must also apply Article 102 TFEU. Furthermore, pursuant to Article 1(4) of the Competition Act, Article 3 must be interpreted in accordance with well-established EU principles.
The ICA has not issued formal guidance on abuses of dominance. However, the Commission Guidance on exclusionary abuses (Guidance) may provide useful indications on the interpretation of Article 3.4
Article 3 also applies to public firms and to those in which the state is the majority shareholder. Pursuant to Article 8 of the Competition Act, antitrust rules do not apply to firms entrusted with the supply of services of general economic interest or holding a legal monopoly, insofar as this is indispensable to perform the specific tasks assigned to them.5
II Year in Review
In 2018, the ICA closed seven investigations regarding abuse of dominance. In four cases, it found an infringement and imposed a fine.6 In one case, it accepted commitments offered by the dominant firm and closed the proceedings without establishing the alleged infringement.7 In two cases, the ICA eventually closed proceedings without finding an infringement (an abusive practice and a failure to comply with behavioural measures imposed by a previous decision, respectively).8 Furthermore, in two other cases, the ICA adopted interim measures in the context of a pending investigation.9 At the beginning of 2019, the ICA issued three additional decisions, regarding the compliance with behavioural measures imposed by a previous decision,10 the possible adoption of interim measures,11 and the acceptance of commitments offered by the firm under investigation,12 respectively.
In 2018, the Regional Administrative Tribunal of Latium (TAR) upheld a decision adopted by the ICA in 2017.13 In addition, the Council of State dismissed an application for revision of a judgment, on the ground that it did not meet the conditions for admissibility,14 and upheld a judgment delivered by the TAR in 2012, which had annulled a decision adopted by the ICA in 1999.15
The abuse cases in the period under review concerned many different practices, including excessive pricing and unfair trading terms, margin squeeze, refusal to deal, tying, exclusive dealing and discriminatory practices.
In February 2018, the ICA imposed a fine of more than €29 million on the shippers Moby and Compagnia Italiana di Navigazione (CIN) for having abused their dominant position on three transport routes between mainland Italy and Sardinia.16 According to the ICA, Moby and CIN implemented a complex and aggressive anticompetitive practice aimed at hindering the growth of competitors. In particular, the two firms imposed unjustified economic and commercial penalties, and retaliated against logistics companies that also used competitors' transport services. Furthermore, they granted more favourable conditions to logistics companies that had remained loyal to Moby and CIN. The ICA concluded that Moby and CIN's strategy had limited entry and growth of competitors on the routes concerned, therefore also harming consumers of the transported goods.
In March 2018, the ICA accepted the commitments offered by Società per l'Aeroporto Civile di Bergamo (Sacbo) and Levorato Marcevaggi in proceedings concerning alleged abusive conduct carried out in the markets for the storage of airport fuel and the on-board provision of aviation fuel.17 Sacbo was the sole manager of Bergamo Airport, holding a legal monopoly in the management of the airport infrastructure. Levorato Marcevaggi had sole control of the only fuel storage in Bergamo Airport and was also the only firm active in the provision of on-board aviation fuel, thereby being dominant in these markets.
According to the ICA's preliminary findings:
- Sacbo had adopted a complex abusive strategy aimed at foreclosing competition in the market for the on-board provision of aviation fuel, by reserving both the exclusive management of the storage and the on-board fuel provision to Levorato Marcevaggi (rectius, to JV Orio, a company initially participated in by Sacbo and subsequently acquired by Levorato Marcevaggi); and
- Levorato Marcevaggi (and, previously, JV Orio) had repeatedly refused to grant competitors access to the fuel storage, with a view to preserving its dominant position in the downstream market for the on-board provision of aviation fuel.
To remove the ICA's concerns, Sacbo and Levorato Marcevaggi offered a set of commitments aimed at opening the market for the on-board provision of aviation fuel to competition (e.g., by committing to build a loading bay outside the fuel storage, which would be freely accessible by all companies interested in providing on-board aviation fuel services in Bergamo Airport) and at ensuring some competition in the market for aircraft fuel storage (e.g., by issuing a public tender for the sub-concession of the management of the fuel storage and – in the meantime – by applying regulated tariffs for access to the storage).
In June 2018, the ICA closed an investigation for possible non-compliance into the Aspen group, by concluding that the drug maker had actually complied with a 2016 decision ordering the firm, inter alia, to define 'non-unfair prices' for the drugs concerned by an alleged abuse.18
The ICA had first opened proceedings against Aspen in 2014, in order to ascertain whether the company was charging excessive prices for certain anti-cancer medicines subject to reimbursement by the public health system. In 2016, the ICA imposed a €5.2 million fine on Aspen for having inflated the drugs' prices by up to 1500 per cent, through an aggressive negotiation strategy with the Italian Medicines Agency (AIFA), and ordered Aspen to carry out all necessary initiatives to define non-unfair prices for the anti-cancer drugs.19
In the investigation concerning the possible failure to comply with the 2016 infringement decision, the ICA found that the new prices for the anti-cancer drugs provided for by an agreement entered into by Aspen and AIFA in April 2018 (which were meant to apply retroactively from the date of the 2016 decision) were fair and non-excessive, as they were up to around 80 per cent lower than those contested by the above-mentioned ICA decision.
In September 2018, the ICA imposed a symbolic fine of €1,000 on the Italian authors' and publishers' association (SIAE) for an alleged abuse of dominance.20
SIAE is a collective management organisation (CMO) within the meaning of Directive 2014/26/EU, established for the collective management of copyrighted works (e.g., musical, cinematographic and theatre works) on behalf of the rights holders, which are its members. In particular, SIAE operates in the management and intermediation of copyrighted works, by granting authorisations to use copyrighted works, collecting rights revenues and distributing them to the rights holders. In Italy, until 2017, SIAE held a legal monopoly in the management of all copyrighted works of Italian authors or of foreign authors published in Italy for the first time. However, the authors had the option of directly managing their copyright without SIAE's intermediation. Moreover, some activities were not covered by the monopoly, such as the issuing of licences and the management of copyright for online works, as well as the management of copyright and related rights on behalf of foreign collective associations with respect to foreign works not published in Italy for the first time. Following the implementation in Italy of Directive 2014/26/EU, rights holders are entitled to entrust the management of their rights either to a CMO of their choice (irrespective of the Member State of nationality, residence or establishment of either the CMO or the right holder) or to independent management entities, which differ from the former, inter alia, because they are not owned or controlled by rights holders.
The ICA found that SIAE was dominant in the markets for the management of copyrighted works, not only in those covered by legal monopoly until 2017, but also in those that were already (at least in theory) open to competition.
According to the ICA, from 2012 SIAE carried out a complex abusive strategy aimed at foreclosing rivals from the markets open to competition and to prevent rights holders from directly managing their own rights, with a view to preserving its monopoly and extending it beyond its scope. In particular, SIAE allegedly carried out the following practices:
- tying of different management services through the clauses of the management contracts entered into with authors, in order to force them to also entrust SIAE with management activities not covered by the legal monopoly;
- systematically attempting to also manage works on behalf of authors who did not authorise it, even where such authors had already expressed the will to directly manage their own rights (e.g., by obliging its members to entrust SIAE with the management of works even when co-authors were not members of SIAE or were associated with other collecting organisations);
- foreclosing competitors from the markets for the licensing of rights to TV broadcasters, through several practices aimed at discouraging TV broadcasters from also using works not included in SIAE's database (e.g., by setting forth 'flat' rates based on the TV broadcasters' revenues, regardless of whether they were linked to the use of SIAE's or other collecting organisations' works); and
- foreclosing competitors from markets for the copyright management of foreign works or works on behalf of foreign collecting organisations, through an unlawful extension of the exclusive rights to the management of works by foreign authors in Italy.
However, in light of the special characteristics of SIAE's position, the complexity of the markets involved and the novelty of the case, the ICA deemed it appropriate to levy only a symbolic fine.
In November 2018, the ICA adopted interim measures with regards to Società Cooperativa Taxi Torino (Taxi Torino), the firm managing the radio taxi services in Turin, in the context of an investigation for a possible abuse of dominant position in the market for taxi demand management services in Turin.21 The ICA opened the investigation following a complaint by MyTaxi, a company that manages a mobile app aimed at connecting taxi drivers and consumers. MyTaxi's complaint concerned a clause of Taxi Torino's by-laws, which imposed a non-compete obligation on taxi drivers participating in Taxi Torino's network. The ICA found that the clause had been introduced in Taxi Torino's by-laws right before the launch of MyTaxi's app in Turin, and that it had led to the exclusion of several taxi drivers from Taxi Torino's network. According to the ICA, the clause hindered entry by open platforms (such as the MyTaxi app) on the relevant market, and was neither indispensable for the functioning of Taxi Torino's network nor proportionate. Furthermore, the ICA held that the conditions required for the adoption of interim measures were met, given that:
- there was prima facie evidence of an infringement and of its effect on competition; and
- the practice gave rise to a risk of serious and irreparable damage to competition, as the non-competition clauses applied to around 90 per cent of taxi drivers active in Turin, and an increasing number of drivers had already discontinued the use of the MyTaxi app.
In light of these circumstances, the ICA ordered Taxi Torino, by way of interim measures, to cease the application of the non-compete clause pending a final decision on the alleged abuse.
In December 2018, the ICA took a strong stance on the liberalisation of electricity markets in Italy, by adopting decisions in three parallel cases concerning possible abuses of dominant position in certain local markets for the retail supply of electricity by three companies active in the distribution and sale of electricity in Italy (i.e., Enel, Acea and A2A).22 The ICA closed the proceedings against A2A without finding any infringement, as the evidence gathered during the investigation did not support its initial allegations, whereas it imposed fines of over €93 million on Enel and €16 million on Acea.
In the local markets in which Enel and Acea manage the distribution of electricity, they are also entrusted with providing an enhanced protection service (EPS), either directly (in the case of Acea) or through a subsidiary (in the case of Enel). The EPS is a regulated service, reserved to domestic clients and small businesses that do not opt for offers at market prices, under which electricity is supplied at a tariff set by the sector regulator. In Italy, the EPS was initially scheduled to end in July 2019, following full liberalisation of the electricity market, but the deadline was recently postponed to 2020. In addition, Enel and Acea are also active in the retail supply of electricity at market prices (once again, the former through a subsidiary).
The ICA concluded that Enel and Acea were each dominant in the local markets for the retail supply of electricity in which they provided the EPS (which corresponded to the areas in which they held an electricity distribution concession).
According to the ICA, by leveraging on assets owned because of their nature as vertically integrated operators (i.e., active in both the distribution and the retail supply of electricity), Enel and Acea engaged – between January 2012 and May 2017, and between 2014 and 2017, respectively – in practices capable of excluding competitors active in the deregulated market, with a view to unlawfully favouring their own operations on the latter. In the ICA's view, the incumbents' conduct had the ultimate objective of inducing their EPS customers to switch to their own supply offers at market prices, in order to avoid losing those customers to competitors following the full liberalisation of the market.
A central element of the ICA's objections was the alleged abusive use by the dominant firms of certain strategic and non-replicable assets (i.e., the lists of customers' contact details collected by Enel and Acea mainly among their EPS customers). According to the ICA, the incumbents used these lists to address targeted offers of deregulated services to EPS customers, thereby gaining an unlawful advantage over its competitors in the deregulated market.
In the case of Enel, the lists were offered to all operators active in the deregulated market, but were ultimately purchased only by Enel's subsidiary active in such market (Enel Energia). Moreover, both Enel and Acea collected the customers' consent to being contacted for commercial purposes in a way that, in the ICA's view, was discriminatory towards competitors: in the case of Enel, because the customers were left the choice to grant their consent exclusively to the Enel group (thus excluding third parties); in the case of Acea, because the customers' consent was collected only in favour of the Acea group. With respect to the Acea group, the ICA also contested an alleged exchange of strategic information on customers between the company in charge of electricity distribution (Areti) and the company in charge of the retail sale of electricity regarding the competitive scenario in the relevant local market.
In both cases, the ICA stated that the use of the lists of contact details of EPS customers was capable of excluding competitors active only in the deregulated market and, accordingly, it was not necessary to provide evidence of the effects of the conduct.
In the first three months of 2019, the ICA adopted three additional decisions.
In February 2019, the ICA closed an investigation concerning the possible failure to comply with a 2017 infringement decision by Poste Italiane (PI), the incumbent in the postal sector in Italy, without finding any infringement.23
In an infringement decision issued in 2017, the ICA had imposed a fine of around €20 million on PI for alleged anticompetitive practices, and ordered PI to desist immediately from the contested conduct and to refrain from carrying out analogous practices in the future.24 According to the ICA, PI was dominant in the market for bulk mail services, and continued to be the only operator covering the entire national territory, including extra-urban areas. In contrast, competitors had more limited territorial coverage and needed to purchase bulk mail services from PI to cover certain extra-urban areas. In the ICA's view, starting from 2014, PI squeezed competitors' margins in extra-urban areas by providing rivals only with the basic bulk mail service in the intermediate market, and offering a value-added service (the certified date delivery service called Posta Time) at lower prices to business customers in the downstream market. In addition, competitors could not replicate PI's technical conditions, as the certified date delivery service was superior to the basic bulk mail service made available to competitors by the incumbent. Furthermore, PI entered into exclusive dealing agreements and offered selective and retroactive loyalty discounts and rebates to customers that purchased all their bulk mail requirements, or a substantial part of them, from the dominant company.
In the investigation concerning PI's possible failure to comply with the 2017 infringement decision, the ICA concluded that the incumbent had not committed any violation. In particular, the ICA found that PI had offered competitors a value-added service equivalent to Posta Time, extending its coverage to geographic areas in which it is the only operator. Moreover, it had modified contracts with customers (e.g., by eliminating the clauses providing for exclusivity and retroactive loyalty rebates).
In March 2019, in the context of proceedings initiated against TicketOne, the ICA adopted a decision finding that the conditions for imposing interim measures were not met.25 In September 2018, the ICA had initiated an investigation concerning a possible abuse of dominant position by TicketOne in the market for ticketing services for live music events. According to the ICA's initial views, by imposing on the main promoters (which manage artists and issue tickets for music events) exclusivity obligations in relation to the provision of ticketing services for live music events, TicketOne had carried out an abusive strategy aimed at excluding competing ticketing platforms. The contested strategy had allegedly consolidated the de facto exclusivity already enjoyed by TicketOne in the online distribution channel, and had also extended the exclusivity to the offline channel, as well as to additional promoters. In January 2018, the ICA extended the proceedings to additional practices allegedly aimed at strengthening the exclusivity clauses (e.g., systematically refusing to derogate from the exclusivity clauses, as well as boycotting and retaliating measures against an operator active in the provision of ticketing services and the promotion of events (ZED)). With the same decision, the ICA opened sub-proceedings to evaluate whether the conditions for the granting of interim measures were met in the case at hand, in particular with respect to the alleged boycott and retaliation against ZED. However, the ICA did not find evidence that the conduct at issue could jeopardise the continuation of ZED's activities pending the investigation on the merits of the case.
In the same month, the ICA accepted the commitments offered by Monte Titoli SpA, a subsidiary of Borsa Italiana active in the post-trading sector, to address the ICA's concerns that Monte Titoli may have abused its dominant position in the securities trading settlement market to squeeze competitors' margins in the custody services market.26
Monte Titoli holds a monopoly in Italy's post-trade settlement market, given that, in its capacity as the central security depository issuer (CSD) (i.e., the entity where all the securities in Italy are stored), it is the only company that is allowed to complete the settlement of the securities. Therefore, companies active in the auxiliary market for security custody services must purchase settlement services from Monte Titoli. Furthermore, Monte Titoli is also active in the downstream market for secondary settlement services and other auxiliary services, together with the custodians.
According to the ICA's preliminary concerns, Monte Titoli charged its customers €0.50 per transaction for its settlement and custody services combined, while it charged competing custody providers a price ranging from €0.47 to €0.48 for its settlement services. This conduct could have left competitors with a margin that did not allow them to replicate Monte Titoli's retail offers. Moreover, the ICA was concerned that Monte Titoli could have applied more favourable settlement commissions to foreign CSDs than to national custodians.
In order to address the ICA's concerns, Monte Titoli committed to:
- use the same pricing structure for all its customers;
- provide Consob (the authority responsible for regulating the Italian securities market) and the Bank of Italy with detailed information on the total costs for the provision of services to different categories of customers;
- discontinue the rebates offered to its new customers; and
- establish, within one month of the acceptance of Monte Titoli's commitments (i.e., earlier than required by the law), the users' committee envisaged by the CSD Regulation (a body having the task of issuing a reasoned opinion on CSD pricing structures).
In 2018, Italian administrative courts adopted some important rulings in abuse cases.
In April 2018, the Council of State dismissed an application lodged by Cantieri del Mediterraneo (CAMED) for the revision of a ruling delivered by another chamber of the Council of State, which had upheld an ICA's decision fining CAMED for abuse of dominant position.27
CAMED was the long-time holder of a concession for the management of dry docks in the Port of Naples, and operated at the same time as provider of boats maintenance and repair services. In 2009, the ICA found that CAMED had abused its dominant position in the market for the rental of dry docks, by failing to provide information on the availability of dry docks to other maintenance and repair providers operating in the Neapolitan port.28 As a consequence, according to the ICA, CAMED had denied competitors a key element to compete effectively for the acquisition of maintenance contracts, in light of the essential and non-duplicable nature of the infrastructure.
Both the TAR and the Council of State upheld the ICA's findings on the merits.29 CAMED lodged an application for revision of the Council of State's judgment, alleging that the latter contained several gross and manifest factual errors. The Council of State dismissed CAMED's application for revision as inadmissible. According to the Council of State, CAMED's application failed to meet the strict conditions justifying a revision of a judgment (i.e., the existence of gross, manifest and unmistakable errors in the reasoning, leading to a mistaken perception of the facts as emerging from the case file). Ultimately, in the Council of State's view, CAMED sought to call into question the previous judge's legal analysis and conclusions, which are not subject to any additional review on the merits.
In May 2018, the TAR upheld the ICA's decision to impose a fine of over €60 million on Unilever Italia for an alleged abuse of dominant position in the market for impulse ice cream.30
In a decision issued in 2017, the ICA found that Unilever had implemented a complex strategy aimed at forcing or encouraging ice cream retailers (mainly cafes) to commercialise just one brand of impulse ice cream in their premises, through:
- exclusive dealing and freezer exclusivity clauses;
- loyalty-inducing contractual terms, such as retroactive target and bundled discounts and rebates; and
- other commercial initiatives, such as a strict monitoring policy to ensure compliance with the loyalty-inducing strategy, including through payments to trade associations to monitor their members' compliance with the loyalty-inducing strategy, and pressure on retailers to induce them to buy Unilever's least successful products.
The ICA held that Unilever's practices had foreclosure effects and limited the choices available to consumers by making it more difficult to find ice creams offered by Unilever's competitors available for sale.
On appeal, the TAR dismissed Unilever's arguments regarding alleged errors in the definition of the relevant market and the assessment of Unilever's dominant position. According to Unilever, the contested conduct had allegedly been carried out in the downstream markets for the wholesale and retail distribution of ice cream, not in the upstream market for the production and sale of this product, where Unilever is active. Accordingly, Unilever argued that it could not be held accountable for the conduct of its 'concessionaires' (i.e., wholesale distributors) with regards to retailers, and that the ICA should not have taken into account the concessionaires' market share to conclude that Unilever was dominant. The TAR upheld the ICA's view that Unilever and its concessionaires form a single complex entity for the purpose of applying competition law. In particular, the TAR noted that the concessionaires distribute Unilever's products based on indefinite-term and bilaterally exclusive agreements, providing for active sales bans and non-compete obligations. Unilever provided concessionaires with freezing cabinets and other merchandising materials. Moreover, for each concessionaire, Unilever unilaterally defined (and monitored the implementation of) an 'operational plan' providing for sales targets, minimum purchase requirements, volume rebates and final price listings. The TAR also shared the ICA's view that an ad hoc report, produced by Unilever after surveying its concessionaires to demonstrate their autonomous decision-making capacity, could not have evidentiary value. According to the TAR, assuming that the concessionaires were aware of the survey's context, they could not feel free to make statements capable of harming Unilever. Accordingly, the TAR concluded that the concessionaires had an 'extremely reduced decision-making capacity' and implemented Unilever's commercial policy.
Furthermore, the TAR dismissed Unilever's claim that the ICA should have considered the actual effects of Unilever's conduct before concluding that it was anticompetitive. In its plea, Unilever made express reference to the Intel case,31 and argued that the ICA should have applied the as-efficient competitor (AEC) test provided for by the Guidance and used in Intel. The TAR held that the ICA's analysis was exempt from criticism and complied with case law of the Council of State, according to which it is sufficient that the conduct has 'merely potential' anticompetitive effects to violate Article 102 of the TFEU.
More specifically, the TAR noted that the principles established by the European Court of Justice (ECJ) in the Intel case did not apply in the Unilever case, as the loyalty discounts and rebates granted by Unilever were part of a broader exclusionary strategy, also encompassing exclusive dealing obligations, which were as such exclusionary, while the Intel case was only about rebates.
As to the AEC test, the TAR held that the ECJ in Intel did not lay down the principle that the AEC test is always necessary to find an infringement. According to the TAR, the general rule is that the AEC test does not constitute a necessary condition for a finding that a rebate scheme is abusive under Article 102 of the TFEU, and that the 'anticompetitive effect of a rebate scheme . . . must be probable' to fall within the scope of that provision. According to the TAR, Unilever's conduct constituted a typical case of exclusionary abuse and the dominant firm had not substantiated its alleged pro-competitive effects. In light of the above, the TAR concluded that Unilever's other arguments (including that competitors could replicate its rebates, and that Algida products were not 'must haves') were irrelevant.
In November 2018, the Council of State dismissed an appeal lodged by the ICA, thus putting an end to a lengthy judicial dispute involving the natural gas transport and distribution markets.32
In 1999, the ICA imposed a severe fine on Snam (which at that time was the owner of the gas transport network, as well as the main player in the primary and secondary markets for the importation, transportation and distribution of gas in Italy) for abusing its dominant position on two markets:
- the market for the transport of natural gas through the national gas pipeline network; and
- the market for the primary distribution of natural gas (i.e., the distribution to factories, power plants and municipalities' distribution networks).33
In particular, the ICA found that the following practices implemented by Snam amounted to an abuse:
- the refusal to grant private gas producers, as per a request received from AMI (the Italian association representing the oil and mining industry), access to its national natural gas pipeline network for transporting their natural gas, including for purposes other than those provided by Law No. 9 of 1991 (namely, electricity-generation and in-house consumption);
- the rejection of AMI's request to revise the charges agreed in 1994 for the transport of nationally produced natural gas; and
- the request to control the end use of the natural gas transported on behalf of the gas company Edison.
In the ICA's view, access to Snam's national gas pipeline network was essential for private gas producers to transport their gas and compete with Snam in the post-primary distribution network. Accordingly, Snam's refusal to grant actual and potential competitors access to its gas pipeline network amounted to an abuse of dominant position.
In 2012, the TAR annulled the ICA's decision.34 In essence, the TAR held that – by objecting to Snam's refusal to grant access to its network to all interested private gas operators – the ICA had ultimately sought to impose on Snam a full and absolute liberalisation of access to its gas pipeline network. However, the relevant EU (and national) sector legislation in place at the time provided for a gradual liberalisation of the gas sector. As a consequence, by obliging Snam to grant unconditional access to its network to all interested parties, the ICA had overstepped the boundaries of its competences, by impinging on the regulatory framework of the gas sector.
On appeal, the Council of State dismissed the ICA's argument that its finding of abuse did not result in overstepping its competences, as it had no impact on the sector regulatory framework. According to the Council of State, the ICA's decision had actually impinged on the relevant regulatory framework, which provided for a slow and gradual liberalisation of the gas sector. Accordingly, the Council of State fully confirmed the first instance ruling.
In 2018, the Italian civil courts also dealt with a number of abuse of dominance cases that address some aspects of damages actions, including the assessment of the relevant market, burden of proof and limitation period.
In February 2018, the Tribunal of Milan rejected damages claims filed by Eutelia and Fallimento Voiceplus for an alleged abuse of dominance committed by Telecom Italia in the market for value-added services offered through non-geographical numbers (NGNs).35 Eutelia and Voiceplus were telecommunications operators authorised to use NGNs to provide clients with value-added services (e.g., televoting services). Telecom (and other fixed and mobile telecommunications operators) provided customers with the call origination services needed to use the value-added services offered by NGN operators. The provision of NGN services was based on a system of double invoicing: the firm providing call origination services charged customers for the value-added services, and transferred the amount paid to NGN operators after deducting a fee. Eutelia and Voiceplus claimed before the Tribunal of Milan that, as of 2005, Telecom had refused to transfer to them the amount paid by certain customers, or to charge some customers for the value-added services provided by Eutelia and Voiceplus, by alleging unproven frauds and anomalies in traffic data concerning their customers.
The Tribunal of Milan held that the claimants had not proved to the required legal standard that Telecom was dominant in a properly defined relevant market. In particular, the Tribunal observed that call origination and invoicing services could be provided not only by Telecom, but also by other fixed and mobile telecommunications players, which enabled NGN operators to supply their services to a significant number of customers without the intermediation of Telecom. The Tribunal also stated that the claimants had not provided sufficient evidence of the alleged discriminatory practices, as the available evidence demonstrated that Telecom had adopted the same course of action in the case of possible frauds and anomalies in traffic data concerning not only the claimants' clients, but also its own customers. Furthermore, Telecom would not have had any economic interest in limiting the traffic of NGN firms, which resulted in additional revenues for the incumbent, as Telecom was entitled to a fee for value-added services.
Between February and July 2018, the Tribunal of Milan issued three judgments on follow-on damages actions brought by cargo ground-handling service providers against the company managing the Milan Malpensa and Linate airports, Società Esercizi Aeroportuali (SEA).36
The claims were all based on a 2008 ICA decision, according to which, between 2002 and 2008, SEA had abused its dominant position (deriving from exclusive management licences until 2041 for both airports) by charging unfair and excessive prices for the provision of airport facilities to operators active in the supply of cargo handling services. In particular, the ICA found that the fees charged by SEA for sub-letting airport space and infrastructure to cargo handlers were significantly higher than those determined for these purposes by the Italian Civil Aviation Authority (ENAC).
In February 2018, the Tribunal of Milan partially upheld the damage claim lodged against SEA by ITR Handling, a provider of ground-handling services for cargo air carriers. Since 2000, ITR Handling held a sub-concession from Malpensa Airport for the use of office space necessary to provide its services. In its action, ITR Handling claimed that, between 2002 and 2009, SEA had imposed fees for the sub-letting of office space that were significantly and unreasonably higher than those determined by ENAC.
The Tribunal dismissed all the arguments put forth by SEA, by heavily relying on the findings of the ICA in its 2008 infringement decision. Accordingly, the Tribunal concluded that SEA's conduct violated not only competition rules (and, as such, resulted in SEA's non-contractual liability towards ITR Handling), but also the sub-concession contract between SEA and ITR Handling and the general duties of loyalty and fairness in pre-contractual negotiations.
However, the Tribunal also found that part of the claim was time-barred, as it concerned payments made between 2002 and 2009, more than five years before the initiation of the judicial proceedings in 2015 (according to the Tribunal, in this case, the five-year limitation period started in December 2006, when the ICA opened proceedings against SEA). According to the Tribunal, the start of the limitation period is linked to the moment when the company became aware of the harm, or it can be assumed that it was adequately informed of the damage, rather than the moment when a final judgment confirmed the infringement.
In March 2018, the Tribunal of Milan partially upheld damage claims lodged against SEA by Brussels Airlines, American Airlines and Aegean Airlines. Interestingly, the three plaintiffs had not participated in the proceedings before the ICA that led to the adoption of the 2008 infringement decision. However, the Tribunal stated that they could still benefit from the evidentiary value of the ICA's findings, as they directly carried out part of the ground-handling services related to their flights (e.g., administrative assistance and assistance to passengers). As a consequence, they fell within the group of operators that could sub-let airport office space at the regulated fees predetermined by ENAC.
While holding that part of the non-contractual claim was time-barred, the Tribunal also held that the damage claims based on the contracts between the three plaintiffs and SEA were not time-barred. In this respect, the Tribunal held that the excessive sub-concession charges provided for by the contracts with SEA were void, as they were incompatible with mandatory rules. As a consequence, the excessive charges agreed by the parties were automatically substituted by those set by ENAC, and the plaintiffs were entitled to the recovery of the wrongly paid sums.
Finally, in July 2018, the Tribunal of Milan partially upheld the damage claim brought against SEA by Schenker. In this case, the Tribunal adopted a pragmatic approach to the issue of whether Schenker qualified as cargo handler (and was hence entitled to benefit from ENAC's regulated sub-concession charges). In the Tribunal's view, what matters is the nature of the airport activity carried out: if the latter makes it necessary to use airport office space (as in the case of Schenker, which carried out cargo customs assistance), the operator in question is entitled to sub-let airport office space at regulated prices.
In April 2018, the Italian Supreme Court issued an order setting aside a judgment of the Court of Appeal of Venice for failure to carry out a proper assessment of the relevant market in a case of alleged abuse of dominant position.37 The Court of Appeal had dismissed an action brought by a private funeral services provider against the Municipality of Rovigo and a funeral services company participated by the Municipality, on the ground that the plaintiff had failed to adequately identify the relevant market. The Supreme Court held that, by limiting itself to dismiss the plaintiff's allegations regarding the definition of the relevant market and the existence of a dominant position, the Court of Appeal misapplied Article 3 of the Competition Act, on the basis of which any finding of abusive conduct (or lack thereof) must be preceded by an in-depth assessment of the relevant market, in order to define both its product and geographic dimension.
III Market Definition and Market Power
The first step in abuse of dominance cases is the definition of the relevant product and geographical market.38 The ICA's general approach to market definition is consistent with the Commission's practice (in particular, the ICA typically focuses on demand-side39 and supply-side substitutability).40 Similarly, the ICA follows the EU notion of dominance.41
Market shares are a key factor in the assessment of dominance.42 Market shares exceeding 40 per cent are normally considered an indication of dominance. However, firms holding market shares lower than 40 per cent may also be dominant if the remaining part of the market is composed of small competitors.43 The stability of market shares is also important,44 but the fact that the market share is decreasing does not necessarily preclude a finding of dominance.45 In the assessment of dominance, the ICA and national courts may consider a number of additional factors that give the firm concerned a competitive advantage or raise barriers to entry.
A dominant position may be held by one or more firms. In accordance with EU case law, collective dominance may be based not only on structural or contractual links between the companies concerned, but also on the economic interdependence among firms active in an oligopolistic market.46
Abuse of economic dependence in a contractual relationship with a single customer or supplier (relative dominance) is prohibited by Article 9 of Law No. 192/1998. This provision aims at protecting the interests of weak parties in contractual relationships. When a contested conduct affects competition on the market, the ICA may exercise its investigative and fining powers under the Competition Act, and it may apply both Article 9 of Law No. 192/1998 and Article 3 of the Competition Act.47
A dominant firm violates Article 3 only if it commits an abuse. Dominance itself is not an offence.
Dominant firms have a special responsibility not to impair undistorted competition in the relevant market.48 As a consequence, conduct that would normally be lawful may be considered anticompetitive if engaged in by a dominant firm.
Article 3 applies to both anticompetitive conduct aimed at excluding competitors (exclusionary abuses) and the exploitation of dominant firms' market power (exploitative abuses).
The list of abuses provided in Article 3 of the Competition Act is not exhaustive, and the ICA has often fined sui generis anticompetitive practices. The crucial challenge is to identify the practices that pose unacceptable competitive dangers. In this respect, the ICA has traditionally adopted a case-by-case approach, which does not seem to reflect a coherent theoretical framework.
Behaviour is considered unlawful if it may hinder the (limited) level of competition still existing in the market or the development of that competition. To establish an abuse, it is sufficient to demonstrate a potential prejudice to competition. It is not necessary to prove that the conduct had actual anticompetitive effects.49
Abuse is an objective concept. An anticompetitive intent is not a prerequisite for a finding of abuse.50 However, the existence of an exclusionary intent may play an important role in the assessment of an alleged abuse, in particular when the contested conduct is part of a plan aimed at eliminating competitors.51 An exclusionary intent may also justify a finding of abuse when the dominant firm exercises a right in an objectionable manner to pursue an objective different from that for which the right was granted in the first place.52
A conduct does not infringe Article 3 if it is objectively justified. This may be the case, in particular, if the conduct is objectively necessary to protect the dominant firm's or third parties' legitimate interests or leads to a cost reduction.53
ii Exclusionary abuses
The ICA issued its first decision on predatory pricing in 1995 in Tekal/Italcementi.54 In accordance with EU case law,55 the ICA held that prices below the average variable cost (AVC) must be presumed unlawful, while prices between AVC and the average total cost (ATC) are unlawful if they are part of an anticompetitive plan. The contested conduct was considered abusive even though it was not proven that the dominant firm was able to recoup the losses incurred by selling at below-cost prices. The ICA's view is consistent with the principles established by the ECJ,56 and contrasts with US case law, which requires the proof of a reasonable likelihood of recouping the losses suffered by selling below cost.57
In Caronte,58 the ICA used different cost benchmarks. Instead of relying on the AVC and ATC, the ICA focused on the short-run average incremental cost (SRAIC) and long-run average incremental cost (LRAIC). According to the decision, prices below SRAIC must be presumed exclusionary, while prices at least equal to SRAIC, but below LRAIC, are unlawful if they are part of an anticompetitive plan. However, a few years later, in Mercato del calcestruzzo cellulare autoclavato, the ICA made reference to average avoidable cost (which was considered equal to the AVC) and the ATC.59
More recently, in TNT/Poste Italiane,60 the ICA used the LRAIC benchmark in the analysis of the pricing policies of the incumbent in the postal sector. However, the ICA adopted a strict approach in calculating the LRAIC. The latter was considered essentially equal to the average operating cost reported by regulatory accounts, which typically also include a share of common costs. The decision was annulled by the TAR,61 whose judgment was upheld by the Council of State.62
In a few cases, the ICA and national courts have held that even above-cost prices offered to strategic customers (selective discounts) may be abusive. This may be the case, in particular, if they are part of a broader exclusionary strategy implemented through different abusive practices,63 or the dominant firm uses privileged information that it holds because of its status of incumbent and vertically integrated operator but that is not available to rivals, to implement win-back or retention policies.64 Furthermore, according to the ICA and the TAR, a discount may be per se abusive, regardless of the relationship between price and cost, if it is the result of a privilege exclusively conferred on the dominant firm by sector-specific rules incompatible with EU rules.65
A vertically integrated firm active in the supply of an input and a final product may infringe competition rules if it sets its upstream or downstream prices so as to squeeze competitors' margins.66 For instance, in Telecom, the ICA held that the Italian incumbent in the electronic communications sector abused its dominant position by charging competitors more than it charged its commercial divisions for the relevant inputs, thus reducing rivals' margins and excluding equally efficient firms.67 A price squeeze may also be the result of discounts offered to retail customers.68
Exclusive dealing obligations may constitute an abuse under Article 3 when the conduct may significantly foreclose access to the market. In Diritti calcistici,69 the ICA found that Mediaset, the main Italian TV operator, violated Article 102 of the TFEU on the market for the sale of TV advertising lots. In 2004, Mediaset concluded with the major Italian soccer clubs various contracts concerning the broadcasting rights of their home matches for the 2004 to 2007 seasons. Moreover, Mediaset negotiated with the same clubs exclusive pre-emption rights for the broadcasting of their matches through all platforms from 2007 to 2016. Through exclusivity, 'English clauses' and pre-emption rights, Mediaset rendered the relevant TV content de facto unavailable for a long period for its competitors.
The ICA may also find an abuse even when a dominant firm imposes de facto exclusivity through the threat of retaliation and other measures,70 or uses contractual clauses that lead to an exclusive commercial relationship,71 especially within the framework of a broader exclusionary strategy that includes other practices aimed at limiting competitors' access to suppliers, distribution channels or customers.
The ICA has also held that loyalty discounts and rebates, conditioned upon the customer obtaining all or most of its requirements from a dominant supplier, or reaching a given target, may infringe competition rules, because they tend to eliminate or restrict purchasers' freedom to choose their supply sources, thus hindering rivals' access to the market or development.72 The loyalty-inducing effect is stronger when loyalty discounts are applied retroactively to all units purchased during a given reference period.
Furthermore, according to the ICA, loyalty discounts may be anticompetitive because they imply discrimination between customers.73
The treatment of loyalty discounts is consistent with the traditional formalistic approach of the EU institutions. The ICA does not consider it necessary to apply a price-cost test to establish whether a loyalty discount scheme is capable of excluding an AEC, especially when the contested conduct is part of a broader exclusionary strategy.74
Article 3(d) of the Competition Act prohibits firms in a dominant position in the market for a particular product or service (the tying product or service) from conditioning the sale of that product or service upon the purchase of another (the tied product or service). Tying may also be obtained through price incentives such as, in particular, bundled discounts and rebates. For instance, in Albacom Servizio Executive,75 the ICA found that the incumbent in the telecommunications sector infringed Article 3 by making certain rebates on the price of a monopolised service conditional upon attaining certain traffic volumes in a liberalised service. In SIAE, the ICA held that the collective management organisation holding a legal monopoly had abused its dominant position by imposing on the authors it represented contractual clauses tying the provision of copyright management services covered by the legal monopoly to other management services open to competition.76
Refusal to deal
Refusal to deal may amount to an abuse when it may substantially weaken competition in the market where the dominant firm operates or in a different market and is not objectively justified. Refusal to deal encompasses a considerable range of practices, including the refusal to supply products or services, to provide information and to grant access to an essential facility.77 Practices such as refusal to begin negotiations, refusal to renew a contract or unilateral termination of a contract may be considered instances of refusal to deal. The imposition of onerous conditions by a dominant firm,78 dilatory strategies79 and other forms of constructive refusal to deal80 might have the same effect as an outright refusal to deal. Differences in the processes for the management of requests for services submitted by internal divisions and by competitors may amount to a constructive refusal to deal if they entail more complexity and, possibly, higher costs for competitors.81
The ICA defines the notion of essential facility in accordance with principles established by EU case law.82 Intellectual property rights and information required to carry out an economic activity may also be considered essential facilities.83
The ICA has applied the principles on refusal to deal and essential facilities in a number of cases, especially in liberalised sectors.84 In its decision practice, the ICA has made extensive reference to EU competition law principles. However, it has often adopted a broad and flexible interpretation of the requirements set by the ECJ's case law.85
A refusal to deal is not abusive if it is objectively justified. This may be the case, for instance, when the dominant firm does not have enough capacity to satisfy third parties' demand, the customer is insolvent or does not respect the contractual terms, or the firm requesting access does not meet the technical or security requirements needed to access an infrastructure.86
In principle, lack of capacity on a facility (capacity saturation) should constitute an objective justification.87 In exceptional circumstances, however, a dominant firm may be obliged to invest in the development of the facility. Indeed, in Eni-TTPC,88 the ICA held that the interruption of the expansion of a pipeline used for the international transport of gas and the termination of the 'ship or pay' agreements entered into by the firm managing the facility – a dominant firm's subsidiary – with independent shippers amounted to an abuse of dominant position. The ICA did not apply the essential facility doctrine since alternative infrastructures could be used to transport gas into Italy, and the dominant firm was not under an obligation to invest in the development of the pipeline. Nonetheless, the ICA held that the interruption of the expansion was abusive due to the interference of the mother company in the subsidiary's investment decisions. In a similar case,89 the Commission adopted a different approach, as it explicitly relied on the essential facility doctrine. In particular, the Commission held that the different infrastructures used to transport gas into Italy, taken as a whole, constituted a single essential facility, and stated that the incumbent may have an obligation to invest in the development of an infrastructure if a system operator not vertically integrated in the sale of gas would do so.
Article 3(c) prohibits dominant firms from applying dissimilar conditions to equivalent transactions, thus placing a trading party at a competitive disadvantage. Charging different prices may be abusive only if it is not economically justifiable.90 For instance, charging lower prices to customers that purchase a larger amount of products, based on objective parameters, may be justified.91
In many cases, the ICA has fined dominant firms for having favoured their subsidiaries or commercial divisions active in downstream markets to the detriment of competitors by granting preferential access to certain resources92 or applying discriminatory conditions.93 Non-price discrimination may also amount to an abuse of dominance.94 Furthermore, discriminatory practices may be prohibited when they aim at penalising customers that also deal with other operators in order to prevent the entry or limit the growth of competitors.95
iv Exploitative abuses
A firm may abuse its dominant position if it directly or indirectly imposes unfair selling or purchasing prices. To establish an exploitative abuse, it may be necessary to engage in an in-depth cost analysis aimed at verifying whether the difference between the costs actually incurred and the price actually charged is excessive.96 If this analysis cannot be carried out or is inconclusive, the ICA may compare the prices imposed by the dominant firm with those charged by the same firm or competitors for the same product or service in other markets97 or in the past.98 In some cases, the ICA applied both the aforementioned tests in the assessment of prices charged by the dominant firm.99
In 2016, in Aspen, the ICA applied a two-stage test to determine whether the prices charged by the dominant firm were excessive and unfair: first, it considered the disproportion between prices and costs; then it took into account a number of additional factors that confirmed the unfairness of the prices (including the historical prices for the products concerned, the lack of economic justifications for the price increases, the absence of any non-economic benefits for final users, the nature of the products, the characteristics of the dominant firm and the harm caused by the practice).100
In some cases, the ICA has fined a dominant company for having charged prices remunerating activities or services that were not rendered.101 In these cases, prices were considered by definition unfair. Article 3 also prohibits the direct or indirect imposition of unfair non-price trading conditions.102
V Remedies and Sanctions
Pursuant to Article 15 of the Competition Act, the ICA may impose on firms fines of up to 10 per cent of their total turnover. However, fines actually imposed by the ICA are normally significantly lower than the above-mentioned cap.
In setting the amount of the fine, the ICA normally applies the principles set out by the Commission guidelines.103
If a firm fails to comply with an order to cease an abusive conduct, the ICA may impose a fine of up to 10 per cent of the firm's total turnover. If the original infringement decision imposed a fine, the new sanction is at least twice the previous fine up to 10 per cent of the turnover. If a firm repeatedly violates an order of the ICA, the latter may suspend the firm's activities for up to 30 days.
ii Behavioural remedies
Pursuant to Article 15(1) of the Competition Act, if the ICA finds a violation of antitrust rules, it orders the companies concerned to put an end to the infringement. The ICA typically asks the companies involved to desist immediately from the anticompetitive conduct, to enact positive measures to restore conditions of effective competition in the affected markets within a certain time-limit, and to report on its progress.
According to Article 14 bis of the Competition Act, in urgent cases, where there is a risk of serious and irreparable damage to competition and a cursory examination of the facts reveals the existence of an infringement, the ICA may order interim measures on its own motion.104
iii Structural remedies
The Competition Act does not expressly empower the ICA to impose structural remedies. As a matter of principle, however, the administrative courts' case law seems to leave the door open to the imposition of structural remedies in competition law cases, subject to a strict proportionality requirement.105
The ICA may start proceedings after assessing the information at its disposal or brought to its attention by third parties, such as public authorities, consumer associations and competitors. The ICA may also start antitrust proceedings following a general sector investigation. Antitrust investigations are often triggered by third-party concerns, but this is not always the case.
The decision to start proceedings, which is published in the ICA's Bulletin and on its website, contains the essential elements of an alleged infringement. The ICA serves the decision upon the parties concerned (i.e., the parties whose conduct is at issue and third parties who submitted complaints or reports). The decision to start proceedings is sometimes served upon the firm under investigation during an unannounced inspection.
Companies under investigation have the right to:
- be heard by the ICA within the time limit indicated in the decision to open proceedings;
- obtain a final oral hearing before the end of the investigation;
- submit briefs and documents; and
- access the case file.
Within 30 days of publication of the decision to start proceedings in the Bulletin, interested third parties (individuals, consumer associations, competitors, or other bodies whose interests might be directly and immediately harmed by the alleged infringement or any measures adopted as a result of the investigation) may request to participate in the proceedings. Complainants and interveners may access the case file and submit briefs and documents. In addition, they may be heard by the ICA officials and be allowed to participate in the final oral hearing, if the latter is requested by the firms under investigation.
Following the opening of the proceedings, the ICA can exercise extensive investigative powers, such as the power to:
- require specific documents or information;
- carry out unannounced inspections at business premises (as opposed to residential premises);
- interview companies' legal representatives;
- image computer hard drives by using forensic IT tools;
- require explanations about any documents or information supplied by the company concerned; and
- secure premises overnight by seal.
The ICA may impose fines on firms that fail to provide the information or exhibit the documents requested or, intentionally or negligently, supply incorrect or misleading information.
The Italian legal system does not provide for special rules on legal privilege in antitrust proceedings. In its decision practice, the ICA generally follows the principles and criteria established by EU case law.
Pursuant to Article 22 of Regulation (EC) No. 1/2003, the ICA may seek the assistance of other national competition authorities to carry out investigative activity in their jurisdiction on its behalf.
In urgent cases, the ICA may order interim measures, which cannot be renewed or extended. If the addressee of the interim measures does not comply with the decision, the ICA may impose a fine of up to 3 per cent of the annual turnover.
Investigations may last for several months and often more than one year. When the ICA considers that it has acquired sufficient evidence, it issues a statement of objections (SO) by which it notifies the companies concerned and any complainants of its objections at least 30 days before the closing date of the investigation. The SO contains an extensive elaboration of the reasons underlying the ICA's assessment of the case.
If the companies being investigated request to be heard by the ICA, a final hearing takes place, typically on the date of closure of the investigation. After the final hearing, the ICA issues a decision. If the ICA finds that the contested conduct is abusive, it orders that the infringement be put an end within a given time limit. If the infringement is serious, the ICA can impose a fine.
Under Article 14 ter of the Competition Act, firms may offer commitments aimed at removing the ICA's competition concerns within three months from the opening of proceedings. After assessing the suitability of such commitments, including by means of a market test, the ICA may make them binding on the firms concerned and close the proceedings without ascertaining any infringement or imposing a fine. Commitment decisions have become a frequently used enforcement tool.
The ICA's decisions are subject to judicial review by the TAR. The parties may file an appeal within 60 days of receipt of the notifications of the decision. The parties can ask the TAR for a stay of execution of the ICA's decision. Hearings for interim measures are usually granted within a short time after the filing of a notice of appeal. A hearing on the merits of a case usually takes place within one year of the filing of an appeal. If the appeal is denied, the party may appeal to the Council of State.
The ICA's decisions are subject to full judicial review with respect to the imposition of fines. Accordingly, administrative courts may also change the amount of the fine. However, they cannot increase the fine, since this would violate the non ultra petita rule.106
In principle, the judicial review of substantive findings is limited to a control of legality. Accordingly, courts must assess whether the ICA based its conclusions on accurately stated facts and supported its decision on adequate and coherent grounds.107 The administrative courts have clarified that the judicial review of substantive findings is strong, effective and penetrating, and also covers the economic analysis carried out by the ICA.108 However, when complex assessments carried out by the ICA remain questionable, the administrative court cannot substitute its own assessment for that of the ICA.109 The limits of judicial reviews of antitrust decisions were confirmed by Article 7(1) of Legislative Decree of 19 January 2017, No. 3 (Legislative Decree 3/2017), implementing Directive No. 2014/104/EU on actions for antitrust damages.110
In Menarini, in light of the judicial review actually exerted by the administrative courts, the European Court of Human Rights held that the Italian administrative enforcement system is compatible with the right to full and effective access to an independent and impartial tribunal established by Article 6(1) of the European Convention on Human Rights (ECHR).111
VII Private Enforcement
Victims of abusive conduct may bring private antitrust actions before the competent Italian civil courts to ask for compensation, declarations of nullity, restitution or injunctive relief.
Damages for breach of antitrust rules may be claimed by victims of anticompetitive conduct pursuant to Article 2043 of the Italian Civil Code, according to which 'any act committed with either intent or fault causing an unjustified injury to another person obliges the person who has committed the act to compensate the damages'. The Italian Supreme Court has clarified that consumers also have standing to bring damages actions in tort for breach of the Competition Act.112
A collective action system has been recently introduced in the Italian legal system.113 Pursuant to Article 140 bis of the Consumer Code, in cases of anticompetitive practices affecting a number of consumers or users, any of them has standing to file a class action with the competent court. At the end of the first hearing, the court decides whether the conditions for the certification of the class action are met.114 If the class action is admitted, a notice about the lawsuit is published, and all consumers or users who claim to have a right homogeneous to that for which the class has been established can join it. The opt-in declaration must be filed with the register of the competent court within a certain time.115 Consumers and users who opt in do not assume the role of parties to the proceedings, and thus do not have procedural powers. If the court eventually finds that the class action is well founded, it orders the defendant to pay a certain sum to each member of the class or, alternatively, establishes the criteria on the basis of which these sums must be calculated.
In addition, pursuant to Articles 139 and 140 of the Italian Consumer Code, consumer associations registered with the Ministry for Productive Activities have standing to request cease-and-desist orders against certain practices that may harm consumer interests, and appropriate measures for correcting or eliminating the detrimental effects thereof.
Damages are limited to the plaintiff's actual losses (i.e., 'out-of-pocket' losses plus loss of profits). Punitive or exemplary damages are not available in the Italian legal system. Plaintiffs can only claim damages that they actually incurred. Where a precise amount cannot be determined, the court may also calculate damages on an equity basis.116
The calculation of damages based on loss of income is especially difficult when the injured company could not enter the market due to abusive conduct. In Telesystem,117 the Court commissioned an expert report on losses suffered by a potential first mover into the sector for leased-lines services, which failed to enter this new market because of the dominant firm's refusal to grant access to certain essential facilities. The damage liquidation was based, inter alia, on the advantage that the plaintiff would have had as first entrant into the sector for leased-lines services. However, the Court also considered that, in a free market economy, monopoly rent, such as that of a first mover, tends to be neutralised by competition within a certain time frame.
Contractual clauses amounting to an abuse of dominant position may be found void. In Avir, the Court of Appeal of Milan stated that the clauses provided for by a gas supply agreement, which imposed an excessive price, were void because they were incompatible with Article 3(a) of the Competition Act, and granted restitution of the abusive overcharge paid by the customer.118
As a matter of principle, civil courts do not have the power to permanently enjoin a defendant from repeating an anticompetitive conduct in their final judgments, unless the antitrust violations are also qualified as unfair competition acts pursuant to Article 2598 of the Italian Civil Code.
A plaintiff may obtain interim remedies, including temporary injunctions and any other remedy that the court may deem appropriate to preserve the plaintiff's rights until a final judgment is issued. To this end, the claimant must provide sufficient factual and legal grounds to establish a prima facie case, as well as the risk of imminent and irreparable damage.
In some cases, the Italian Supreme Court has stated that findings contained in an ICA decision constitute privileged evidence, from which a court may legitimately infer the existence of the alleged infringement, damage and causal link. In principle, the presumption is rebuttable. However, the nature of privileged evidence of the ICA's findings prevents defendants from arguing against the very same facts and grounds that the ICA relied upon to find a violation of antitrust rules.119 In a judgment delivered in 2014, the Supreme Court stated that, in principle, the ICA's findings are not binding on civil courts and there is no legal category of privileged evidence distinct from that of legal proof.120 Nonetheless, the Court confirmed that the findings contained in an ICA decision have 'high evidentiary value' in proceedings before civil courts.121 According to lower courts, commitment decisions may also have evidentiary value, as they imply at least that an abuse was considered likely on the basis of an investigation carried out by the ICA.122
As to stand-alone private actions, the Supreme Court stated that, in light of the information asymmetry between claimants and defendants and the complexity of antitrust cases, civil courts should not adopt a strict application of the burden-of-proof principle.123 To ensure an effective application of competition rules in private actions for damages, national courts should use the procedural tools available under Italian law (such as orders to submit documents, requests for information from administrative authorities and expert opinions) to acquire and evaluate data and information useful for establishing the alleged anticompetitive conduct.
On 3 February 2017, Legislative Decree 3/2017, implementing Directive 2014/104/EU on actions for antitrust damages, entered into force. The Decree introduced a number of substantive and procedural provisions to facilitate damages claims by victims of antitrust infringements. It follows the EU Directive, with some minor procedural adjustments. The new procedural rules apply to damages actions brought after 26 December 2014.
Inter alia, the Decree strengthens the rules on disclosure of evidence. Upon motivated request, national courts can order the parties to civil proceedings or third parties to disclose relevant evidence in their possession. Courts have to specifically indicate the evidence to be disclosed and, in the case of confidential information, they must adopt the necessary measures to protect it (e.g., by redacting sensitive information). If a piece of evidence cannot be produced by the parties or any third party, courts can order the exhibition of the documents in the case file of a national competition authority – apart from leniency statements and settlement submissions – provided that certain conditions are met.
According to the Decree, ICA decisions and administrative court definitive judgments constitute legal proof of antitrust infringements. Nevertheless, a claimant still has to prove the other requirements for civil liability, including the causal link between the conduct and the damage. Decisions of competition authorities and courts of other Member States constitute evidence that may be considered by the national courts together with other available evidence.
Damages claims based on antitrust infringements are time-barred after five years. However, the limitation period is stayed during ICA proceedings, and for an additional year from the moment the infringement decision becomes final or the proceedings otherwise terminate.
The Decree confirms the principle that victims of antitrust infringements are entitled to full compensation, but overcompensation should be avoided. The alleged infringer may claim that the claimant has passed on all or part of the overcharge to its customers (passing-on defence). In this case, the burden of proof lies with the defendant, which may also ask for a judicial order of disclosure of evidence from the claimant or third parties.
The parties to a cartel are jointly and severally liable for the damage caused, but this principle does not apply when the cartelist is a small or medium-sized enterprise; or the cartelist received full immunity in the context of leniency applications.
The Decree attributes exclusive competence over actions for antitrust damages to the specialised business divisions of the courts of Milan, Rome and Naples, which are competent for Northern, Central and Southern Italy, respectively.
VIII Future Developments
The effects-based approach to abuse of dominance cases does not seem to have established itself in Italian decision practice and case law. ICA and national court decisions frequently rely on certain traditional statements of EU case law, which reflect the formalistic and structural approach adopted in the past. They usually consider it sufficient to show that the contested conduct tends to restrict competition or is capable of having anticompetitive effects, without carrying out a comprehensive economic assessment of the impact of the practice. This approach seems to be confirmed by the recent Unilever and Poste cases on loyalty discounts and rebates,124 in which the ICA (and the TAR in the appeal against the Unilever decision) did not consider it necessary to carry out a price-cost analysis aimed at establishing the risk of exclusion of equally efficient competitors, despite the guidance in the Intel judgment of the ECJ.125
The transition towards an effects-based approach would require a stronger and more penetrating judicial review by administrative courts. The approach of the administrative courts in the review of antitrust decisions still seems erratic. In some cases, such as TNT/Poste Italiane, they engaged in an in-depth review of the decision, also taking into account grounds of appeal raising complex economic issues. In other cases, however, such as the above-mentioned Unilever judgment, the administrative courts seemed to limit themselves to reiterating the ICA's views, also through extensive references to the contested decision, or have simply overlooked some of the arguments put forward by the parties, without providing adequate explanations as to why they should have been dismissed. A more stringent judicial review of antitrust decisions is necessary not only to foster the transition towards an effects-based approach but also to guarantee full compliance with the fundamental right of access to an independent and impartial tribunal established by Article 6(1) of the ECHR, as interpreted by the European Court of Human Rights in Menarini.126
Unfortunately, Legislative Decree 3/2017, implementing Directive 2014/104/EU, confirmed that the judicial review of antitrust decisions does not extend to complex assessments carried out by the ICA when these assessments are disputable. The entry into force of the binding effect of the ICA's findings of infringement in private damages actions, pursuant to Article 7 of Legislative Decree 3/2017, will probably increase the tension between antitrust proceedings and the protection of fundamental rights. The Tribunal of Rome's judgment in Pfizer in 2017 (which refused to find an infringement already found by the ICA and confirmed by the Council of State) confirms that, in some cases, the civil courts may have valid reasons to depart from the position taken by an antitrust authority (including the need to take into account new events and factual evidence).127 The binding effect of antitrust decisions in damages actions is difficult to reconcile with the protection of fundamental rights if findings of infringements are not subject to full and unlimited review by an independent court (including with regard to complex economic assessments).
Many cases decided by the ICA and national courts in the past few years have concerned highly regulated sectors. The interaction between competition law and sector-specific regulation seems to give rise to an increasing risk of conflicts of jurisdiction and interferences between different authorities. In some cases, the application of competition rules has led to the imposition of obligations incompatible with sector-specific rules, which has often been criticised by the administrative courts. A recent example is the Snam judgment, in which the Council of State criticised the ICA for having overstepped the boundaries of its competences, by impinging on the regulatory framework of the gas sector and by seeking to impose an outright liberalisation of the sector despite the gradual approach adopted by EU and national legislation.
In other cases, the application of competition rules seemed to supplement sector-specific regulation by imposing additional and stricter obligations (e.g., in the recent Enel and Acea cases, where the ICA found that – on the verge of the full liberalisation of the electricity sector – the incumbents had a special responsibility to ensure that they would not jeopardise the liberalisation process). The use of competition law to impose additional and stricter obligations on firms already subject to pervasive sector-specific regulation also raises delicate issues as to the interference and overlapping between the two sets of rules.
The Wind-Fastweb/Condotte Telecom Italia case is a notable example of the risk of conflicts and inconsistencies between the two sets of rules. Access regulation in the electronic communications sector in Italy (and many other states) was traditionally based on the equivalence of output principle, according to which access services offered by the incumbent to alternative operators must be comparable to the services it provides to its retail division in terms of functionality and price, but they may be provided through different systems and processes. By contrast, in its 2015 ruling,128 the Council of State seemed to consider that differences in supply processes (provided for by sector regulation) are problematic in themselves, because they inevitably entail a different treatment of external and internal requests for access services. To reduce the risk of further antitrust proceedings and damages actions, in 2016 the incumbent introduced a new equivalence model based on the use of the same systems and processes for external and internal requests. Thus, antitrust intervention eventually resulted in a radical shift in the regulatory model, which went beyond the remedies imposed by sector-specific regulation.
In the past few years, the ICA and Italian courts have also shown more activism in the assessment of new types of abuse. Some decisions belong to the controversial line of cases concerning the misuse of rights and legitimate interests arising from sector-specific rules through the initiation of administrative or judicial proceedings aimed at obstructing competitors' activity. In Pfizer, the Council of State clarified that this type of abuse – which has been inspired by EU case law129 – is:
nothing but the specification of the broader category of abuse of right, whose precondition is the existence of a right which is used artificially, for a purpose which is incoherent with that for which that right is granted: in the case at issue, the exclusion of competitors from the market.130
Even the exercise of contractual rights, such as the right to termination of a contract, has been considered abusive on the ground that it was strategically exercised with the sole purpose of excluding a competitor.131
The misuse of rights and legitimate interests lies at the boundary of antitrust liability. An abusive exercise of a right or legitimate interest may be found when the contested conduct is characterised by an additional element that is intrinsically objectionable, such as the provision of false or misleading information to a regulatory authority, or when it is part of a broader exclusionary strategy also implemented through other anticompetitive practices.132 The distinction between legitimate exercise and abuse of right becomes much more complex, however, when a dominant firm merely exercises its rights in administrative or judicial proceedings to (artificially) protect its position and interests.
The ICA and administrative courts have often emphasised a dominant firm's alleged exclusionary intent, which seems to be a crucial factor in the assessment of the alleged abuse;133 however, the distinction between abuse and legitimate exercise of right should not be based merely on the dominant firm's intent. Reference to the dominant firm's exclusionary intent opens the door to considerable uncertainty, and to a high margin of appreciation in the assessment of corporate statements, internal documents and commercial choices. In addition, a firm's intent is not in itself sufficient to distinguish legitimate from anticompetitive conduct. Indeed, the aim pursued by any firm competing on the market is, in a sense, to prevail against, and eventually to exclude, its competitors. Moreover, in many cases, the rationale behind the rules invoked by the dominant firm is just to exclude or limit competition from other players. This is the case, for instance, with the rules granting and protecting intellectual property rights, as well as those allowing competitors to access a facility or to carry out an economic activity only within certain limits and under certain conditions.134
The judgments delivered by the TAR in Arenaways in 2014 and by the Tribunal of Rome in Pfizer in 2017 seem to confirm that, as a general rule, firms may not be deprived of the chance to exercise their rights and legitimate interests, even though this may negatively affect competitors' access to the market; however, the boundaries between legitimate exercise and abuse of right remain unclear and need to be clarified by the competent authorities in the future.
As to the enforcement policy, in the past few years the ICA has adopted a more rigorous approach in the assessment of commitments offered by parties. In the past, the ICA often used the commitment procedure to exercise lato sensu regulatory functions by negotiating and making legally binding measures aimed at improving the competitive conditions or at benefiting consumers, even in the absence of a clear and direct link between the commitments and the competitive concerns identified by the ICA. From the introduction of commitments procedures, in 2006 to December 2010, the ICA made extensive use of commitment decisions, which represented around 85 per cent of decisions concluding abuse of dominance cases (28 out of 33), but this trend reversed a few years ago, also due to some rulings by the administrative courts, which have constrained the ICA's discretion in commitment procedures. In the period from 2011 to 2014, the ICA issued commitment decisions in only slightly more than 30 per cent of investigations concerning abuses of dominance.135
In 2015 and 2016, commitment decisions represented the majority of abuse of dominance cases closed by the ICA (two out of three cases each year). However, in 2017, the ICA issued commitment decisions in four out of 10 cases, while in 2018, the ratio was only one out of seven cases. In 2019, so far, the ICA has adopted one commitment decision out of two cases.
Compared to past practice, the ICA now seems to pay more attention to the nexus between the competitive concerns and the commitments offered by the parties. Furthermore, the fact that lower courts tend to consider that commitment decisions may also have evidentiary value may reduce the incentive of firms to offer voluntary remedies.136 Nonetheless, negotiated enforcement continues to play a very important role in antitrust decision-making practice. This may have both positive and negative effects. Commitment decisions may reduce risks for firms, and enable the ICA to address more rapidly the issues raised by potentially anticompetitive practices. On the other hand, an extensive use of commitment decisions may negatively affect the development of case law on abuse of dominance, as these decisions do not contain a complete and detailed analysis of the alleged infringement, and the robustness of their reasoning and interpretative choices is normally not tested before courts.
1 Matteo Beretta is a partner and Gianluca Faella is counsel at Cleary Gottlieb Steen & Hamilton LLP.
2 Law No. 287 of 10 October 1990.
3 In particular, it is prohibited to (1) directly or indirectly impose unjustifiable burdensome purchase or selling prices or other contractual conditions; (2) limit or restrict production, market outlets or market access, investment, technical development or technological progress; (3) apply to other trading partners objectively dissimilar conditions for equivalent transactions, thereby placing them at an unjustifiable competitive disadvantage; and (4) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of such contracts.
4 Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, 2009/C 45/02.
5 Firms holding a legal monopoly must operate through separate companies if they intend to operate on other markets. When firms entrusted with the provision of services of general economic interest or holding a legal monopoly supply their subsidiaries on different markets with products or services over which they have exclusive rights, they must make these products or services available to their direct competitors on equivalent terms and conditions. This provision applies regardless of the market position of the subsidiary.
6 Decisions of 28 February 2018, No. 27503, A487, Compagnia Italiana di Navigazione – Trasporto marittimo delle merci da/per la Sardegna; 25 September 2018, No. 27359, A508, SIAE/Servizi intermediazione diritti d'autore; 20 December 2018, No. 27494, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica; 20 December 2018, No. 27496, A513, Acea/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica.
7 Decision of 14 March 2018, No. 27089, A507, Servizio rifornimento carburante avio.
8 Decisions of 20 December 2018, No. 27495, A512, A2A/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica; 13 June 2018, No. 27209, A480B, Incremento prezzo farmaci Aspen-Inottemperanza.
9 Decisions of 21 March 2018, No. 27094, A516, Gara affidamento servizi TPL Bolzano; 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino.
10 Decision of 20 February 2019, No. 27568, A493B, Poste Italiane/Prezzi recapito.
11 Decision of 7 March 2019, No. 27581, A523, Ticketone/Condotte escludenti nella prevendita di biglietti.
12 Decision of 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
13 TAR, 31 May 2018, No. 6080.
14 Council of State, 17 April 2018, No. 2312.
15 Council of State, 13 November 2018, No. 6355.
16 Decision of 28 February 2018, No. 27503, A487, Compagnia Italiana di Navigazione – Trasporto marittimo delle merci da/per la Sardegna.
17 Decision of 14 March 2018, No. 27089, A507, Servizio rifornimento carburante avio.
18 Decision of 13 June 2018, No. 27209, A480B, Incremento prezzo farmaci Aspen-Inottemperanza.
19 Decision of 29 September 2016, No. 26185, A480, Incremento prezzo farmaci Aspen.
20 Decision of 25 September 2018, No. 27359, A508, SIAE/Servizi intermediazione diritti d'autore.
21 Decision of 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino. In the other 2018 decision regarding the adoption of interim measures (decision of 21 March 2018, No. 27094, A516, Gara affidamento servizi TPL Bolzano), the ICA did not adopt interim measures, as certain initiatives implemented by the firm under investigation following the opening of the proceedings had removed the periculum in mora.
22 Decisions of 20 December 2018, No. 27494, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica; No. 27496, A513, Acea/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica; No. 27495, A512, A2A/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica.
23 Decision of 20 February 2019, No. 27568, A493B, Poste Italiane/Prezzi recapito.
24 Decision of 13 December 2017, No. 26900, A493, Poste italiane/Prezzi recapito.
25 Decision of 7 March 2019, No. 27581, A523, Ticketone/Condotte escludenti nella prevendita di biglietti.
26 Decision of 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
27 Council of State, 17 April 2018, No. 2312.
28 Decision of 28 October 2009, No. 20412, A405, La Nuova Meccanica Navale/Cantieri del Mediterraneo.
29 TAR, 14 July 2010, No. 25434; 18 January 2011, No. 451; Council of State, 13 December 2011, No. 6525.
30 TAR, 31 May 2018, No. 6080; decision of 31 October 2017, No. 26822, A484, Unilever/Distribuzione gelati.
31 Case C-413/14 P, Intel, ECLI:EU:C:2017:632.
32 Council of State, 13 November 2018, No. 6355.
33 Decision of 25 February 1999, No. 6926, A221, Snam-Tariffe di vettoriamento.
34 TAR, 3 September 2012, No. 7481.
35 Tribunal of Milan, 13 February 2018, No. 1560.
36 Tribunal of Milan, 16 February 2018, No. 1671; 15 March 2018, No. 3011; 27 July 2018, No. 8374.
37 Supreme Court, 18 April 2018, No. 9579.
38 See, for example, Supreme Court, 18 April 2018, No. 9579.
39 See, for example, decision of 28 June 2011, No. 22558, A415, Sapec Agro/Bayer-Helm.
40 See, for example, decision of 17 December 1998, No. 6697, A 209, Goriziane/Fiat Ferroviaria.
41 See, for example, decisions of 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 14 June 2000, No. 8386, A274, Stream/Telepiù; and 10 April 1992, No. 453, A13, Marinzulich/Tirrenia.
42 See, for example, decision of 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; TAR, 23 September 2008, No. 8481.
43 See, for example, decision of 27 November 2003, No. 12634, A333, Enel Trade-Clienti Idonei.
44 See, for example, decision of 30 June 2010, No. 21297, A383, Mercato del cartongesso.
45 See, for example, decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
46 See decision of 3 August 2007, No. 17131, A357, Tele2/Tim-Vodafone-Wind.
47 Pursuant to Article 9, Paragraph 3 bis, of Law No. 192/1998, in the case of widespread and repeated violations of the rules on payment terms provided for by Legislative Decree No. 231/2002, in contractual relationships with firms (in particular small and medium-sized undertakings), an abuse may be found even in the absence of economic dependence. See decision of 23 November 2016, No. 26251, RP1, Hera-affidamenti gruppi misura gas/termini di pagamento.
48 See, for example, Council of State, 19 July 2002, No. 4001; TAR, 14 April 2008, No. 3163; decision of 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; Council of State, 15 May 2015, No. 2479; TAR, 31 May 2018, No. 6080.
49 See, for example, Council of State, 15 May 2015, No. 2479; TAR, 30 August 2006, No. 7807; 20 October 2006, No. 10678; TAR, 31 May 2018, No. 6080.
50 See, for example, Council of State, 19 July 2002, No. 4001.
51 See, for example, decisions of 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 9 February 1995, No. 2793, A76, Tekal/Italcementi.
52 See Council of State, 12 February 2014, No. 693; 8 April 2014, No. 1673; TAR, 27 March 2014, No. 3398.
53 See, for example, decisions of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento, Bulletin 8/1999; 23 July 1993, No. 1312, A35, Cesare Fremura/Ferrovie dello Stato.
54 Decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
55 Case C-62/86, AKZO/Commission, 1991 ECR I-3359.
56 Case C-334/96, Tetra Pak/Commission, 1996 ECR I-5951.
57 Brook Group v. Brown & Williamson Tobacco, 509 US 940 (1993).
58 Decision of 17 April 2002, No. 10650, A267, Diano/Tourist Ferry Boat-Caronte Shipping-Navigazione Generale Italiana.
59 Decision of 24 October 2007, No. 17522, A372, Mercato del calcestruzzo cellulare autoclavato.
60 Decision of 14 December 2011, No. 23065, A413, TNT Post Italia/Poste Italiane.
61 TAR, 25 June 2012, No. 5769.
62 Council of State, 6 May 2014, No. 2302. The Council of State held that the analysis of LRAIC was erroneous in several respects: (1) the predation analysis should have been carried out ex ante, on the basis of data and information available when the firm set its prices, and not ex post, on the basis of regulatory costs; (2) the ICA had not taken into account the increase in regulatory costs because of universal service obligations; (3) the ICA had assessed the profitability of the service over the first year and a half of activity without considering that initial losses in the launch of a new product may be inevitable; and (4) the ICA had wrongfully identified the incremental costs borne for the supply of the services concerned by allocating to these services resources used mainly for other services.
63 Decision of 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; Court of Appeal of Milan, 16 May 2006.
64 Decision of 12 November 2008, No. 19249, A375, Sfruttamento di informazioni commerciali privilegiate; Court of Appeal of Milan, 16 May 2006.
65 Decision of 27 March 2013, No. 24293, Case A441, Applicazione dell'IVA sui servizi postali, Bulletin No. 16/2013; TAR, 7 February 2014, No. 1525.
66 See, for example, decision of 13 December 2017, No. 26900, A493, Poste Italiane/Prezzi recapito; 13 December 2017, No. 26901, A500A, Vodafone – SMS informativi aziendali; 13 December 2017, No. 26902, A500B, Telecom Italia – SMS informativi aziendali; 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
67 Decision of 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; see also decision of 23 October 2008, No. 19020, A376, Aeroporti di Roma-Tariffe aeroportuali.
68 See, for example, decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia, confirmed by the TAR, 8 May 2014, No. 4801, which was upheld by Council of State, 15 May 2015, No. 2479. See also decision of 15 July 2015, No. 25561, A473, Fornitura acido colico, concerning both an increase in the upstream price and selective discounts in the downstream market.
69 Decision of 28 June 2006, No. 15632, A362, Diritti calcistici.
70 See, for example, decision of 25 July 2017, No. 26704, A499, Assicurazioni agricole/Comportamenti escludenti Codipra.
71 See decision of 31 October 2017, No. 26822, A484, Unilever/Distribuzione gelati (confirmed by TAR, 31 May 2018, No. 6080), concerning, inter alia, a commitment to provide retailers with freezer cabinets without any charge, on the condition that retailers would not stock competitors' ice creams in the freezer (freezer exclusivity).
72 See, for example, decisions of 27 November 2003, No. 12634, A333, Enel Trade-Clienti Idonei; 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; 27 June 2001, No. 9693, A291, Assoviaggi/Alitalia; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 19 October 1994, No. 2379, A49, Pozzuoli Ferries/Gruppo Lauro; 10 April 1992, No. 453, A13, Marinzulich/Tirrenia; 31 October 2017, No. 26822, A484, Unilever/Distribuzione gelati.
73 See, in particular, decisions of 27 June 2001, No. 9693, A291, Assoviaggi/Alitalia; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia.
74 See decisions of 13 December 2017, No. 26900, A493, Poste italiane/Prezzi recapito; 31 October 2017, No. 26822, A484, Unilever/Distribuzione gelati; TAR, 31 May 2018, No. 6080.
75 Decision of 29 May 1997, No. 5034, A156, Albacom Servizio Executive; see also decisions of 25 July 2017, No. 26704, A499, Assicurazioni agricole/Comportamenti escludenti Codipra; 20 September 2000, No. 8692, A247, Aeroporti di Roma-Tariffe del Groundhandling; 10 April 1992, No. 453, A13, Marinzulich/Tirrenia.
76 Decision of 25 September 2018, No. 27359, A508, SIAE/Servizi intermediazione diritti d'autore.
77 See, for example, decision of 14 March 2018, No. 27089, A507, Servizio rifornimento carburante avio.
78 See decision of 6 November 1997, No. 5446, A129, Infocamere/Cerved. A refusal to deal by a dominant firm is abusive only if it is capable of having a significant impact on the market. Evidence of a single refusal to supply may not be sufficient to find an abuse. See TAR, 21 February 2001, No. 1371.
79 See decision of 25 July 2012, No. 23770, A436, Arenaways-Ostacoli all'accesso nel mercato dei servizi di trasporto ferroviario passeggeri. However, the decision was annulled by the TAR, 27 March 2014, No. 3398, according to which the ICA had erroneously held that the administrative procedures initiated by the dominant firm were merely dilatory.
80 See decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia, confirmed by TAR, 8 May 2014, No. 4801, which was upheld by Council of State, 15 May 2015, No. 2479.
82 See, for example, decision of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento.
83 See, for example, decisions of 8 February 2006, No. 15175, Glaxo-Principi attivi; 15 June 2005, No. 14388, A364, Merck-Principi attivi; TAR, 3 March 2006, No. 341; Court of Milan, 4 June 2013, No. 7825; decision of 6 September 2016, No. 26167, A486, Enel Distribuzione-Rimozione coatta dispositivi smart metering; 20 December 2017, No. 26907, A4503, Società Iniziative Editoriali/Servizi di rassegna stampa nella provincia di Trento.
84 See, for example, decisions of 17 March 1993, No. 1017, A11, IBAR/Aeroporti Roma; 16 March 1994, No. 1845, A56, IBAR/SEA; 10 January 1995, No. 2662, A71, Telsystem/Sip; 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma; 11 November 1996, No. 4398, A102, Associazione Consumatori Utenti/Alitalia; 30 October 1997, No. 5428, A178, Albacom/Telecom Italia-Circuiti dedicati; 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia, confirmed by TAR, 8 May 2014, No. 4801, upheld by Council of State, 15 May 2015, No. 2479; 19 February 2014, No. 24804, A443, NTV/FS/Ostacoli all'accesso nel mercato dei servizi di trasporto ferroviario passeggeri ad alta velocità; 22 March 2017, No. 26497, A489, Nuovo Imaie-Condotte anticoncorrenziali.
85 See, for example, decision of 15 June 2005, No. 14388, A364, Merck-Principi attivi; TAR, 3 March 2006, No. 341.
86 See, for example, decision of 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma.
87 However, the ICA has normally rejected the defence in the light of the specific facts of the case: see, for example, decisions of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento; 6 June 1996, No. 3953, A107, Fina Italiana/Compagnia Italpetroli; 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma.
88 Decision of 15 February 2006, No. 15174, A358, Eni-Trans Tunisian Pipeline.
89 Commission decision of 29 September 2010, Case COMP/39.315, ENI.
90 For instance, in Alitalia, the ICA held that Alitalia's incentive schemes for travel agents were discriminatory because, in some cases, different commissions were granted to travel agents for reaching similar sales targets. Thus, the agreements placed some travel agents at a competitive disadvantage without an acceptable justification. See decision of 27 June 2001, No. 9693, A291, Assoviaggi/Alitalia. See also, inter alia, decisions of 17 March 1993, No. 1017, A11, IBAR/Aeroporti Roma; 10 April 1992, No. 452, A4, Ancic/Cerved.
91 Court of Appeal of Milan, 7 November 2017.
92 See, for example, decisions of 27 February 2014, No. 24819, A444, Akron-Gestione rifiuti urbani a base cellulosica; 8 January 2017, No. 26350, A490, Net Service-Software processo civile telematico; 20 December 2018, No. 27494, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica; 20 December 2018, No. 27496, A513, Acea/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica.
93 See, for example, decisions of 3 August 2007, No. 17131, A357, Tele2/Tim-Vodafone-Wind; 27 April 2001, No. 9472, A285, Infostrada/Telecom Italia-Tecnologia ADSL; 29 March 2006, No. 15310, A365, Posta elettronica ibrida; 24 February 2000, No. 8065, A227, Cesare Fremura-Assologistica/Ferrovie dello Stato.
94 See, for example, decisions of 27 April 2001, No. 9472, A285, Infostrada/Telecom Italia-Tecnologia ADSL; 29 March 2006, No. 15310, A365, Posta elettronica ibrida; 11 November 1996, No. 4398, A102, Associazione Consumatori Utenti/Alitalia.
95 See, for example, decision of 28 February 2018, No. 27503, A487, Compagnia Italiana di Navigazione – Trasporto marittimo delle merci da/per la Sardegna.
96 See, for example, decisions of 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci; 23 October 2008, No. 19020, A376, Aeroporti di Roma-Tariffe aeroportuali; 26 November 2008, No. 19189, A377, Sea-Tariffe aeroportuali; 16 March 1994, No. 1845, A56, IBAR/SEA.
97 In that case, it is for the dominant firm to justify the price differential by showing objective differences between the situation in the markets concerned. See, for example, decision of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento. See also decision of 28 July 1995, No. 3195, A48, SILB/SIAE.
98 See, for example, decision of 4 May 2017, No. 26562, A498A, Enel – Prezzi servizi di dispacciamento area Brindisi.
99 See, for example, decisions of 15 November 2001, No. 10115, A306, Alitalia/Veraldi; 10 April 1992, No. 452, A4, Ancic/Cerved.
100 Decision of 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci, upheld by TAR, 26 July 2017, No. 8948.
101 See, for example, decision of 23 May 2002, No. 10763, A299, International mail express/Poste Italiane.
102 Examples of unfair trading conditions include the imposition of a contractual clause that prohibits customers from reselling products bought from a supplier (decision of 10 April 1992, No. 452, A4, Ancic/Cerved), the refusal by a dominant firm providing toll payment services to reimburse cards not used, or only partially used, after their expiry (decision of 26 July 2007, No. 17069, A382, Autostrade/Carta prepagata Viacard), and the request of payment of unpaid bills of former customers as a condition to enter into new agreements for the supply of electricity or communications services (decisions of 10 October 2007, No. 17481, A390, Enel Distribuzione/Attivazione subordinata a pagamento morosità pregresse; 21 August 2008, No. 18692, A398, Telecom-Morosità pregresse).
103 See Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003, 2006 OJ (C 210) 2.
104 See, for example, decision of 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino.
105 See, in particular, TAR, 27 February 2007, No. 1745; 15 January 2007, No. 203.
106 See Council of State, 2 March 2009, No. 1190.
107 See Council of State, 19 July 2002, No. 4001 and, more recently, TAR, 10 March 2003, No. 1790.
108 See, for example, Council of State, 6 May 2014, No. 2302; 20 February 2008, No. 597; 8 February 2007, No. 515.
109 See, for example, Council of State, 6 May 2014, No. 2302; 24 September 2012, No. 5067.
110 Legislative Decree 3/2017, implementing in Italy Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, 2014, OJ L 349/1.
111 ECHR, Case No. 43509/08, A Menarini Diagnostics/Italy.
112 Supreme Court, 4 February 2005, No. 2207.
113 See Article 140 bis of Legislative Decree No. 206/2005 (Consumer Code). The collective action is applicable only with respect to infringements committed after 15 August 2009.
114 A collective action can be rejected by a court for a number of reasons. For instance, it can be dismissed when the consumer or user concerned has interests conflicting with those of the proposed class or does not seem to be able to adequately protect the class's interests.
115 Individuals can decide not to join the class and file a separate lawsuit on their own.
116 Court of Appeal of Naples, 28 June 2007, No. 2513.
117 Court of Appeal of Milan, 18 July 1995 and 24 December 1996.
118 Court of Appeal of Milan, 16 September 2006; Tribunal of Milan, 15 March 2018, No. 3011; 27 July 2018, No. 8374.
119 Supreme Court, 20 June 2011, No. 13486. As a consequence, the defendant can rebut, for instance, the presumption of a causal link by alleging and proving different and specific factors, which were ex se capable of causing the damage or contributed to its causation, but it cannot rely on factors already examined and dismissed by the ICA. See Supreme Court, 10 May 2011, No. 10211; Court of Appeal of Milan, 2 January 2017.
120 Supreme Court, 28 May 2014, No. 11904.
121 In the case at hand, the Court held that the ICA decision was sufficient to prove the alleged infringement, its capability to harm customers and the existence of damage to customers in general. In a few cases, lower courts have departed from the findings of the ICA's infringement decision: see, for example, Tribunal of Rome, 26 July 2017, No. 12806, holding that the dominant firm had not committed an abuse, also in light of certain developments subsequent to the ICA decision.
122 Tribunal of Milan, 28 July 2015, No. 9109.
123 Supreme Court, 4 June 2015, No. 11564; see also Supreme Court, 1 April 2016, No. 6366.
124 Decision of 31 October 2017, No. 26822, A484, Unilever/Distribuzione gelati, confirmed by TAR, 31 May 2018, No. 6080; 13 December 2017, No. 26900, A493, Poste Italiane/Prezzi recapito.
125 Case C-413/14 P, Intel, ECLI:EU:C:2017:632.
126 Judgment of 27 September 2011, A Menarini Diagnostics SRL v. Italy, application No. 43509/08.
127 Tribunal of Rome, 26 July 2017, No. 12806.
128 Council of State, 15 May 2015, No. 2479; TAR, 8 May 2014, No. 4801.
129 In particular, in AstraZeneca, the Commission and the General Court held that the firm concerned had abused its dominant position by obtaining a supplementary protection certificate on the basis of misleading information and representations provided to the competent authorities. See Case C-457/10 P, AstraZeneca v. Commission, ECLI:EU:C:2012:770.
130 Council of State, 12 February 2014, No. 693.
131 Decision of 25 March 2015, No. 25397, A474, SEA/Convenzione ATA; TAR, 23 January 2017, No. 1188.
132 See, for example, decision of 3 September 2015, No. 25035, A476, Conai-Gestione rifiuti da imballaggi in plastica.
133 Council of State, 12 February 2014, No. 693. See also, inter alia, Council of State, 8 April 2014, No.1673.
134 A narrower interpretation of the concept of abuse of dominance is necessary, in particular, in cases concerning the exercise of fundamental rights enshrined in the EU Charter of Fundamental Rights or Member States' constitutional traditions, such as the right of access to justice.
135 Two out of six, three out of nine, one out of five and one out of two, respectively.
136 Tribunal of Milan, 28 July 2015, No. 9109.