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 2019, the ICA closed five investigations regarding abuse of dominance. In two cases, it found an abuse 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 one case, concerning a possible failure to comply with behavioural measures imposed by a previous decision, the ICA eventually closed the proceedings without finding an infringement.8 In another case, the ICA contested a failure to comply with the commitments accepted and made binding by a previous decision as well as an abuse of dominance.9
In 2019, the ICA also conducted two further proceedings relating to previous abuse of dominance cases: in one case, the ICA revoked a previous commitments decision, in light of changes in the competitive scenario;10 in another case, the ICA recalculated the fine previously imposed on a dominant firm, following a judgment issued by the Regional Administrative Tribunal of Latium (TAR).11 Furthermore, in three cases, the ICA resolved on the adoption of interim measures in pending investigations.12
In 2019 and the first months of 2020, administrative courts also adopted several decisions. In particular, in 2019 the TAR partially annulled three decisions adopted by the ICA in 2018,15 upheld an appeal lodged against another decision issued in 2018,16 and rejected in full the appeals against two more decisions of the same year.17 Moreover, in January 2020, the TAR upheld an appeal against a decision adopted by the ICA in 2017.18 At the beginning of 2020, the Council of State annulled two decisions adopted by the ICA in 2012 and 2018, respectively,19 and rejected an appeal against a judgment delivered by the TAR in 2017.20
The abuse cases in the period under review concerned many different practices, including excessive pricing and unfair trading terms, margin squeeze, refusal to deal, exclusive dealing and discriminatory practices.
i Antitrust investigations
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.21 In an infringement decision issued in 2017, the ICA had imposed a fine of around €20 million on PI for alleged anticompetitive practices, and had ordered PI to desist immediately from the contested conduct and refrain from carrying out analogous practices in the future.22 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. By contrast, competitors had more limited territorial coverage and needed to purchase intermediate 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 (i.e., the market for mail services offered by PI to competitors), 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 a possible failure to comply with the 2017 infringement decision by PI, 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, by extending its coverage to geographic areas in which it is the only operator. Moreover, it had modified contracts with customers in line with the 2017 infringement decision (in particular, by eliminating the clauses providing for exclusivity and retroactive loyalty rebates).
In the same month, the ICA accepted the commitments offered by Monte Titoli, a subsidiary of Borsa Italiana active in the post-trading sector, to address the ICA's concerns that Monte Titoli could have abused its dominant position in the securities trading settlement market to squeeze competitors' margins in the custody services market.23 Monte Titoli holds a monopoly in Italy's post-trade settlement market, given that, in its capacity as central security depository issuer (CSD) (i.e., the entity where all the securities in Italy are stored), it is the only company allowed to complete the settlement of 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 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: (1) use the same pricing structure for all its customers; (2) 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; (3) discontinue the rebates offered to its new customers; and (4) 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 April 2019, the ICA levied a fine of €1.1 million on SAD – Trasporto Locale (SAD), a company entrusted by the Autonomous Province of Bolzano (APB) with the provision of suburban public passenger land transport services in the Bolzano area.24 In the Bolzano area, local public passenger transport services are carried out by several companies, including SAD, on the basis of concessions granted by the APB. In the 60s, SAD was entrusted by the APB with the provision of public passenger land transport services with respect to certain suburban lines, where it enjoyed a legal monopoly. In view of the forthcoming expiration of the concessions, the APB decided to implement a new territorial organisation of local public transport services, by splitting the Alto Adige region into four geographic areas and issuing a public tender procedure to assign the right to provide local public transport services in each of these geographic areas.
In January 2018, following a complaint submitted by the APB, the ICA opened an investigation to verify whether SAD had unlawfully refused to provide information that was essential to prepare the supporting documentation required to carry out the public tender procedure regarding suburban public passenger land transport services in the Bolzano area. Following the investigation, the ICA concluded that SAD had abused its dominant position, by delaying and ultimately refusing to provide the APB with updated information regarding certain production factors used for the provision of the transport services (e.g., the list of vehicles used and logistics, such as storage and parking spaces) as well as the personnel employed. In the ICA's view, this delay had the effect of foreclosing the entry of potential competitors on the relevant market, to the detriment of consumers.
In July 2019, the ICA imposed a symbolic fine of €1,000 on Ferrovie dello Stato Italiane (FS), Rete Ferroviaria Italiana (RFI) and Trenitalia for having abused their dominant position in the markets for rail infrastructure management and regional rail passenger transportation services in Veneto.25
FS, a company fully owned by the Italian Ministry of Economics and Finance, is the holding of the FS Group and controls both RFI, which operates the Italian rail network in a monopoly regime, and Trenitalia, which is the main service provider for public rail transport in Italy. In 2014, the Veneto Region launched an invitation to tender for the provision of regional railway services, but withdrew the invitation two years later, when it decided to directly entrust Trenitalia with the provision of regional rail services from 2018 to 2032. Following a complaint by Arriva Italia Rail, alleging that the Veneto Region had entrusted Trenitalia with the provision of railway services only because, in exchange, RFI had promised to invest in infrastructure modernisation in Veneto, the ICA opened an investigation into the contested practice.
In the ICA's view, the parties implemented a single and complex anticompetitive strategy, aimed at leveraging on RFI's legal monopoly in the upstream market for the management, maintenance and development of the rail network, in order to induce the Veneto Region to grant Trenitalia exclusive rights for the provision of regional rail services in Veneto (i.e., the downstream market, on which Trenitalia holds a dominant position). According to the ICA, the anticompetitive strategy relied on RFI's allegedly wide discretionary powers in planning railway infrastructure interventions and allocating economic resources for their implementation. Moreover, in the ICA's view, Trenitalia unlawfully participated in the decision-making process concerning the modernisation of the railway infrastructure in Veneto and, accordingly, gained a competitive advantage compared to other railway service providers by exploiting confidential information when negotiating its commercial offer with the Veneto Region. Notwithstanding the above, the ICA imposed a mere symbolic fine, taking into account the fact that the contested practices would ultimately lead to improvements and innovation in the railway infrastructure.
In October 2019, the ICA fined the Italian Federation of Equestrian Sports (FISE) around €451,000.00 for failure to comply with a previous commitments decision and abusive conduct.26 In particular, the ICA found that FISE had breached the commitments made binding by the ICA in the context of a previous investigation, aimed at avoiding the situation where FISE could limit the performance of equestrian activities and events by abusing its regulatory powers.27 According to the ICA, FISE breached the commitments by unlawfully using its regulatory powers to restrict the activities of amateur operators, inter alia by introducing restrictive regulations and sending letters of formal notice to operators active in the relevant market that did not comply with the newly-introduced regulatory measures. The ICA held that the contested conduct also amounted to an exclusionary abuse, in that it prevented third parties from having access to the market for the organisation of equestrian events.
In the first three months of 2020, the ICA adopted two additional decisions.
In January 2020, the ICA closed an investigation into three distinct possible abusive practices implemented by Ireti, Italgas Reti and 2i Rete Gas (i.e., the incumbent gas distribution operators in several municipalities of the Province of Genoa), by accepting and making binding the commitments offered by the three firms concerned.28 In its preliminary assessment, the ICA had found that the incumbents could have individually infringed Article 102 TFEU by abusing their dominant position as current exclusive concessionaires of gas distribution in the local markets included in the area of ATEM Genova 1 (i.e., the territorial district including 24 municipalities adjacent to Genoa), in the context of the organisation by the Genoa Municipality of a tender procedure for awarding the rights to distribute gas in the above-mentioned municipalities. In particular, according to the Genoa Municipality, the incumbents delayed the transmission of technical information essential for organising the tender procedure and, ultimately, responded only in part to its repeated requests.
The commitments offered by the parties were aimed at preventing the reoccurrence of analogous situations in the context of future tender procedures in areas where the three firms were the exclusive concessionaires. To this end, the companies committed to send the full set of technical information required within 60 days of any requests received from the relevant contracting authorities.
In February 2020, the ICA imposed a fine of over €100 million on the incumbent in the electronic communications sector, Telecom Italia (TIM), for having abused its dominant position in the wholesale and retail markets for broadband and ultra-broadband electronic communications services in Italy.29
The case relates to the initiatives undertaken at the national level to promote the development of ultra-broadband networks. In March 2015, in line with the Europe 2020 Agenda, the Italian Government approved the Italian Strategy for High-Speed Broadband, intended to cover most of the Italian territory with infrastructure capable of offering high speed electronic communications services. The implementation of the Strategy was entrusted to Infratel Italia, an in-house company owned by the Italian Ministry of Economic Development. Infratel was in charge of periodically carrying out a public consultation to: (1) update the map of available high-speed broadband connectivity offered by telecommunications operators; (2) identify geographical areas where operators have not intervened so far with their own infrastructure programs and do not have an interest in doing so in the next three years; on this basis; and (3) determine the most disadvantaged areas of the national territory, eligible for public intervention through aid measures (i.e., 'market failure' or 'white' areas, in which, in the absence of public subsidies, private investment in innovative infrastructure would not take place).
In 2016, Infratel launched the first two tenders for the construction of an ultra-broadband network in the white areas, based on the FTTH (fibre-to-the-home) technology. In the first tender, TIM submitted a bid, but ranked second to Open Fiber, a joint venture established by Enel and Cassa Depositi e Prestiti Equity to build fibre infrastructures in white areas with the support of public subsidies. TIM was also admitted to participate in the second tender, but eventually it did not submit any offer. Indeed, the incumbent changed its investment policy in white areas and announced an autonomous coverage plan, based on a less costly (but lower performance) technology (fibre-to-the-cabinet).
In June 2017, following complaints by Infratel, Enel and Open Fiber, the ICA started an investigation into TIM's behaviour, allegedly aimed at delaying fibre roll-out by other operators. The investigation was subsequently extended to TIM's offers in the wholesale market for broadband and ultra-broadband access services, as well as the alleged use of privileged network information regarding other operators' customers to contact them and increase sales in the retail market for broadband and ultra-broadband communication services.
In the final decision, the ICA stated that TIM had engaged in different anticompetitive practices, which were allegedly parts of a complex exclusionary strategy. In particular, in the ICA's view, TIM obstructed the implementation of the tenders launched by Infratel to promote the entry of new infrastructure operators in the most disadvantageous areas. To this end, TIM allegedly decided to make an unprofitable change to its investment plans during the tender procedure, in order to cover white areas with its own ultra-broadband network. At the same time, TIM started a series of legal actions and initiatives aimed at delaying the tenders. Moreover, according to the ICA, TIM offered exclusionary prices for ultra-broadband access services, with a view to pre-empting the contestable demand at the wholesale level in the entire national territory. Finally, in the retail market for electronic communication services, TIM allegedly offered conditions capable of tying customers for a long period.
In the ICA's view, TIM's alleged exclusionary strategy was implemented through initiatives that were legitimate in principle (such as infrastructure investments and legal actions to defend its interests), but allegedly pursued an aim not worthy of protection, i.e., limiting the development of competition in a market considered strategic for the country.
On the other hand, the ICA found no evidence that TIM had used privileged network information concerning other operators' customers to contact them through call centres and increase its sales in the retail market. This malpractice was not attributable to TIM, which showed instead a strong concern with respect to such phenomenon and implemented a series of initiatives to prevent any inappropriate use of network information.
ii Administrative courts' rulings
In 2019, Italian administrative courts adopted some important rulings in abuse cases. In June 2019, the TAR partially annulled an infringement decision addressed to maritime carriers Moby and CIN, which was issued by the ICA in 2018.30 In the decision, the ICA stated that Moby and its wholly-owned subsidiary CIN had abused their dominant position on certain maritime freight transport routes connecting Sardinia and North-Central Italy, by engaging in exclusionary strategy targeting certain competitors. In particular, Moby and CIN allegedly boycotted logistics operators that had entered into business relations with rival ferry operators, through the simultaneous application of (1) retaliatory measures and unfavourable economic and commercial conditions to disloyal logistics operators (direct boycott), and (2) more favourable economic and commercial conditions to other logistics operators (indirect boycott). As a consequence, the ICA imposed on Moby and CIN, jointly and severally, a fine of around €29 million.
On appeal, the TAR dismissed the parties' grounds concerning the definition of the relevant market, the dominant position and the direct boycott. However, the court annulled the parts of the decision relating to the indirect boycott and the anticompetitive effects of the contested conduct.
With respect to the indirect boycott, the TAR held that the contested practice amounted to the grant of fidelity rebates. In line with the principles established by the Court of Justice of the European Union (CJEU) in Intel,31 the TAR stated that the ICA was required to analyse the conditions, duration and amount of the rebates, and to assess the possible existence of a strategy aiming at excluding as efficient competitors from the market. In the TAR's view, the ICA failed to assess whether the rebates were defensive in nature and could be replicated by rivals. The TAR concluded that, without this factual analysis, the ICA could not substantiate its allegations on the contested exclusionary strategy merely by reference to its own interpretation of certain documents.
In the same vein, according to the TAR, the ICA failed to carry out an adequate investigation and to provide convincing reasons for its conclusion that the unlawful conduct affected logistics operators and Grendi, a competing maritime freight carrier. According to the TAR, the ICA did not:
- properly rebut the fact that disloyal logistics operators increased their combined profits more than loyal logistics companies; and
- carry out any empirical analysis to demonstrate that Grendi's poor economic performance was caused by the contested conduct.
In September 2019, the TAR rejected the appeal submitted by Società Italiana degli Autori ed Editori (SIAE) – the Italian copyright collecting society – against the ICA's decision to impose a symbolic fine of €1,000 for having abused its dominant position in the markets for the provision of copyright management services.32
In the fining decision, issued in 2018, the ICA found that SIAE had engaged in a complex abusive strategy aimed at excluding other copyright management firms and preventing the entry and development of innovative market players. In the ICA's view, SIAE attempted to strengthen its market position and extend it outside the scope of the statutory monopoly granted by Article 180 of Law No. 633 of 22 April 1941 (Copyright Law), through practices such as the inclusion of exclusivity clauses in management contracts and bundling of different copyright management services. In addition, SIAE allegedly applied to TV broadcasters and concert organisers flat rates based on their revenues, regardless of whether they related to the use of SIAE's or other collecting organisations' works, with a view to discouraging broadcasters and concert organisers from using works not included in SIAE's database.
On appeal, the TAR dismissed all the grounds raised by SIAE. By its first ground of appeal, SIAE argued that, as it constitutes a public administration, the ICA should have addressed a reasoned opinion to SIAE to highlight the alleged violations and indicate any adequate remedies, instead of launching an antitrust investigation. The TAR rejected the applicant's claim, on the grounds that: (1) regardless of its formal nature of public administration, SIAE carried out an economic activity in a competitive market; (2) SIAE was dominant in the relevant markets for the provision of copyright management services; (3) the investigation did not concern the exercise of SIAE's public functions, but the application of antitrust rules to practices falling within their scope; (4) a theoretically lawful conduct, involving the exercise of powers and prerogatives provided for by law, may turn out to be anticompetitive in certain cases.
SIAE also argued that the ICA had erroneously applied competition rules to a public entity that provides services of general economic interest. In SIAE's view, the ICA had mistakenly held that the copyright management activities could not be considered services of general economic interest under the principles laid down in the CJEU's OSA preliminary judgment.33 However, the TAR dismissed also this ground of appeals. The court noted that what matters is the conduct, rather than the abstract structure of the entity concerned. Moreover, under EU case law, Article 102 TFEU may apply in case of exercise of special or exclusive rights granted by law, unless the relevant conduct is strictly linked to the fulfilment of the specific general economic interest tasks the entity is entrusted with.
Finally, the TAR confirmed the ICA's finding of abuse. In the court's view, SIAE's practices were not covered by the exclusivity set forth by Article 180 of the Copyright Act. Moreover, the TAR rejected the 'atomistic' evaluation of each conduct separately from the others, suggested by SIAE, and held that a violation of Article 102 TFEU could be established on the basis of all of SIAE's actions in their combination, which in the ICA's view prevented or hindered the development of competitive dynamics in the copyright management sector.
In October 2019, the TAR reviewed the ICA's decisions fining Enel and Acea for abuse of dominance in the local markets for retail electricity supply.34 The two firms are active in both the provision of the enhanced protection service (EPS) and the market for the retail supply of electricity at market prices. The EPS is a regulated service, reserved to domestic clients and small businesses that do not opt for offers at market prices. 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 2022.
In the ICA's view, Enel and Acea leveraged on their position of vertically integrated operators, active in both the distribution and the retail supply of electricity in their respective local markets, to exclude competitors active in the provision of deregulated services at market prices. In particular, Enel and Acea collected from their EPS customers the privacy consent to be contacted for commercial purposes, and used these lists of customers to formulate targeted offers in the deregulated segment of the market. In addition, in defining its commercial strategies, Acea used privileged and detailed information on the evolution of market shares and the positioning of competitors in the areas in which the Acea group provides the distribution service through a subsidiary. According to the ICA, the contested practices were aimed at inducing Enel and Acea's respective EPS customers to switch to the incumbents' offers in the deregulated segment of the market, so as to avoid losing those customers to competitors following the full liberalisation of the market.
In the Acea judgment, the TAR held that the ICA's decision did not meet the standards set by the CJEU in the Intel case.35 First, the TAR stated that the ICA had not adequately taken into account the arguments submitted by Acea in relation to the collection of EPS customers' contact details and the use of such contact details in its commercial activities on the market for deregulated services. In the TAR's view, there was no discriminatory commercial policy specifically targeted to EPS customers, given that, inter alia, Acea contacted these clients with standardised offers, designed for its entire customer base, instead of ad hoc offers. Second, the TAR annulled the decision in the part concerning the alleged use by Acea of sensitive information on the market positioning and performance of its main competitors (exclusively available to its branch active in the downstream market of electricity distribution) to better target its marketing strategy and monitor its effectiveness. In this respect, the TAR held that the ICA had failed to clarify how aggregated data on competitors' market positioning could be used by Acea to orient (or monitor the effectiveness of) its business strategy of 'retention' of customers in the regulated market. The ICA's reasoning was based on mere presumptions and did not adequately demonstrate an anticompetitive conduct.
In the Enel judgment, the TAR rejected the grounds of appeal concerning the alleged abuse. In particular, the TAR upheld the ICA's finding that, compared to the lists of contact details other firms could collect on the market, the contact details collected by Enel provided additional strategic information, namely the fact that the customers belonged to its EPS activities, which allegedly allowed Enel's subsidiary active on the deregulated market to address targeted offers to such customers. With respect to the analysis of the effects of the alleged abuse, the TAR limited itself to reiterating the traditional view that, once it is established that a conduct is capable of excluding competitors, it is not necessary for an antitrust authority to assess its actual effects. In this respect, the TAR seemed to depart from the position taken in the Acea judgment. However, the TAR upheld the grounds of appeal concerning the quantification of the fine, with respect to: (1) the duration of the alleged abuse, which in the TAR's view amounted to one year and nine months (instead of more than five years); and (2) the turnover used by the ICA as a basis to calculate the fine (i.e., the turnover generated by Enel in 2017, notwithstanding that the last full year of the alleged infringement was 2016).
In the first three months of 2020, the Italian administrative courts adopted four additional rulings in abuse cases.
In January 2020, the Council of State annulled a decision issued by the ICA in 2012, in a case raising novel and complex issues.36 The contested decision imposed a fine of €276,132 on Estra for having abused its legal monopoly in the market for gas distribution in the Municipality of Prato, by initially refusing, and then delaying, the provision to the contracting authority of the information required for the launch of a public tender for gas distribution services.37
In August 2019, the TAR partially upheld the appeal lodged by Estra against the decision.38 The TAR dismissed Estra's argument that its conduct was lawful in light of a judgment delivered in 2010 by the TAR of Tuscany, which had rejected the appeal brought by the Municipality of Prato against Estra's refusal to provide the requested information. The TAR relied on the established principle according to which the fact that a conduct is compatible with sector-specific regulation does not necessarily make it legitimate under competition law.
On appeal, the Council of State quashed the ICA decision. First, the Council of State recalled that, pursuant to settled case law, abuse of dominance may constitute a form of abuse of right (i.e., distorted use of a right by its holder to pursue objectives that differ from those indicated by law). The Council of State then stated that – in the context of the judicial scrutiny of an antitrust decision – the judicature must not only establish whether the evidence put forward by the ICA is factually accurate, reliable and consistent, but also determine whether that evidence is capable of substantiating the conclusions drawn from it. In this respect, the benefit of doubt must be given to the firm under investigation, particularly when a decision imposes fines, in light of the presumption of innocence established by Article 6(2) of the European Convention on Human Rights (ECHR).39
In the case at issue, the Council of State concluded that the ICA's reasoning did not allow it to 'ascertain with reassuring certainty' an abuse of dominance. Estra's conduct could be considered a lawful defence of one's property (as demonstrated by the fact that Estra challenged the municipality's decision to launch a tender before the TAR of Tuscany, but complied with the municipality's request following the final ruling issued on the matter by the Council of State). Moreover, according to the Council of State, the ICA failed to adequately prove that acknowledging the municipality's right to receive the information required for the tender procedure, regardless of Estra's doubts on the lawfulness of the procedure, would result in greater efficiency to the benefit of consumers.
In January 2020, the TAR annulled an ICA decision finding an alleged abuse committed by Società Iniziative Editoriali (SIE), the publisher of the main daily newspaper in the area of Trento (L'Adige), on the daily newspaper market, by refusing to license the editorial contents of its newspaper to companies providing daily press reviews in the above-mentioned area.40 The ICA's investigation originated from a complaint by Euregio, a company active in the downstream local market for daily media monitoring services, which provided customers with a customised press review of selected news. Following the investigation, the ICA imposed a fine of approximately €1,000 on SIE and ordered it to license the right to use the content of its newspaper on fair, reasonable and non-discriminatory (FRAND) terms to any operator requesting it.
Based on established principles on refusal to license intellectual property rights,41 the TAR held that the ICA had not adequately established two of the conditions required by EU case law, namely the essential nature of the input requested and the competitor's intent to use it to launch a new product. In relation to the first condition, the ICA focused on the 'special usefulness' of the content of L'Adige for the production of local press reviews, without verifying the absolute indispensability and non-duplicability of the input, as required under the essential facilities doctrine. As to the second condition, the ICA failed to verify whether Euregio's press review could be considered a new product, as it did not clarify to what extent such review would have been ground-breaking compared to similar products already available on the market.
In March 2020, the Council of State upheld the appeal filed by Società Cooperativa Taxi Torino (Taxi Torino), the firm managing radio taxi services in Turin, against a judgment issued by the TAR in June 2019,42 which had confirmed a decision imposing interim measures.43
The contested decision was issued by the ICA in 2018, in an investigation into a possible abuse in the market for taxi demand management services in Turin. A clause of Taxi Torino's by-laws imposed a non-compete obligation on taxi drivers participating in its 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. The ICA considered that the conditions for the adoption of interim measures were met and ordered Taxi Torino to cease the application of the non-compete clause pending a final decision on the alleged abuse.
In June 2019, the TAR confirmed the interim measures. The administrative court first clarified the legal standard for the judicial review of interim measures. When reviewing these measures, a court does not have to assess whether the ICA gathered conclusive evidence on the infringement of competition law, but must rather limit its assessment to verifying whether there are elements from which it can be inferred, with a sufficient degree of reliability, that anticompetitive conduct is taking place. On the merits, the TAR Lazio held that: (1) taxi demand management services offered through apps, phone or radio constitute a single relevant market from an antitrust perspective; (2) the non-compete obligation imposed on taxi drivers participating in Taxi Torino's network was aimed at limiting competition; and (3) the interim measures issued by the ICA were reasonable and well grounded.
On appeal, the Council of State quashed the interim decision. The supreme administrative court held that, also in light of EU principles, the ICA may anticipate the exercise of its powers through interim measures, under Article 14 bis of the Competition Act, only when the theory of harm is already sufficiently clear. The market definition adopted by the ICA, encompassing taxi demand management services offered through apps, phone and radio, did not meet the required legal standard, as the ICA failed to provide empirical data showing that the services based on these different platforms were valid substitutes for consumers.
As to the necessity and proportionality of the interim measure, the Council of State did not agree with the ICA's assessment. According to the Council of State, the non-compete clause was just an application of the duty of loyalty of members towards cooperatives provided for by Article 2527(2) of the Italian Civil Code, which prevents members from exercising an economic activity in competition with the cooperative. Further, the clause at stake was introduced by Taxi Torino to prevent potential unfair competition acts, following its entry in the market for taxi demand management services offered through apps. The Council of State also considered that, contrary to the ICA's finding, the low number of taxi drivers adopting the Mytaxi platform was due to the commercial policy of the competitor, rather than to the non-compete clause introduced by Taxi Torino.
In March 2020, the Council of State rejected the appeal lodged by Aspen against a judgment issued by the TAR in July 2017,44 which had confirmed the ICA's decision to fine Aspen over €5 million for excessive prices under Article 102(a) TFEU.45 In the decision, adopted in September 2016, the ICA found that, through an aggressive negotiation strategy vis-à-vis the Italian Medicines Agency (AIFA), Aspen had obtained price increases between 300 per cent and 1500 per cent for certain oncological drugs (known as 'Cosmos'). Both the TAR and the Council of State upheld the ICA's findings.
With regard to market definition, the Council of State clarified that, even though the Anatomical Therapeutic Chemical (ATC) classification system provides a useful benchmark and is commonly used by antitrust authorities to define relevant markets in the pharmaceutical sector, the ICA is not bound to use it. In the case at hand, it was justified to depart from the ATC classification system because, due to their specific characteristics, Cosmos drugs could not be substituted with other drugs for the treatment of certain diseases and some categories of patients (children and elderly people). Accordingly, they could be considered separate relevant markets for antitrust purposes. Moreover, the Council of State confirmed the ICA's finding of dominance, on the grounds that Aspen virtually holds a 100 per cent share and does not face any effective actual or potential competition, also due to the barriers to entry that characterise the relevant markets.
The Council of State also upheld the assessment of Aspen's negotiation strategy by the ICA. According to the Council of State, Aspen's acts and initiatives had to be analysed not separately, but as a whole. Overall, Aspen's negotiation strategy was aimed at achieving extremely high prices for the Cosmos drugs. Aspen abused its right to renegotiate the prices of the Cosmos drugs, by leveraging on their essential character and engaging in an aggressive negotiation strategy, also through a credible threat to withdraw the products concerned from the market.
Finally, the Council of State considered that the ICA had correctly applied the two limbs of the test elaborated by the CJEU in United Brands to assess excessive prices.46 First, the ICA had carried out a price-cost comparison based on two parameters: (1) the difference between prices and costs, measured through the gross contribution margin; and (2) the difference between revenues and a 'cost plus' benchmark, including direct costs, the share of indirect costs allocated to the products concerned and a profit margin. Both methodologies led to the conclusion that Aspen's prices were well above production costs. Second, the ICA had verified whether the prices were unfair, taking into account all relevant circumstances. In particular, the ICA had considered the new prices charged by Aspen and those applied in the past and found that there were no plausible economic or non-economic justifications for the substantial price increases imposed by Aspen. Accordingly, the ICA had correctly concluded that the prices charged by Aspen were unfair.
iii Civil courts' rulings
In 2019 and the first months of 2020, the Italian civil courts also dealt with a number of abuse cases that address several aspects of damages actions, including the assessment of the relevant market, burden of proof and limitation period.
Some cases concerned alleged abuses committed by the company managing the Milan Malpensa and Linate airports, Società Esercizi Aeroportuali (SEA).
In January 2019, the Court of Milan partially upheld the damages claims lodged by three cargo ground-handling service providers (Cad Leo Antelli, Agility Logistic and Latasped) against SEA.47 The parties alleged that SEA, as a legal monopolist in the handling of airport infrastructures within the above-mentioned airports, had carried out an abusive and discriminatory pricing practice and claimed both contractual and non-contractual damages. The allegations were based on a decision issued by the ICA in 2008, according to which, between 2002 and 2008, SEA had charged unfair and excessive prices for the provision of airport facilities to operators active in the supply of cargo handling services. According to the ICA's findings, the fees charged by SEA for sub-letting airport space and infrastructure to cargo handlers were significantly higher than those determined by the Italian Civil Aviation Authority (ENAC).
The case fell outside the scope of the new regime introduced with Legislative Decree No. 3/2017 (implementing Directive 2014/104/EU), providing for the binding effect of antitrust decisions in civil proceedings. Accordingly, the Court of Milan made reference to the traditional view that the findings contained in an ICA decision constitute privileged evidence, from which a court may legitimately infer the existence of a dominant position, an infringement and a competitive harm. In principle, the presumption is rebuttable, but the nature of privileged evidence of the ICA's findings prevents defendants from arguing against the very same facts and grounds the ICA relied upon to find an antitrust infringement. In the case at hand, SEA did not provide any alternative explanation, as it only tried to rebut the same facts on the same grounds submitted during the investigation.
While part of the non-contractual claim was time-barred, the damage claims based on the contracts between the plaintiffs and SEA were not. In this respect, the Court of Milan stated 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, under Italian civil law, the excessive charges agreed by the parties were automatically substituted by those set by ENAC, and the plaintiffs were entitled to recover the amounts overpaid.
In July 2019, the Italian Supreme Court confirmed a judgment of the Milan Court of Appeal concerning the same alleged infringement committed by SEA between 2002 and 2008.48 The Supreme Court confirmed that the findings in a decision of the ICA (or a final ruling of administrative courts) constitute privileged evidence, from which a civil court may legitimately infer the existence of a dominant position and an antitrust infringement. The Supreme Court also confirmed that the limitation period starts to run when the claimant perceives, or can reasonably be expected to perceive, the information needed to start a civil action, including the contested behaviour and the fact that it constitutes an infringement of competition law. This analysis must be carried out on a case-by-case basis, in light of all relevant circumstances. In the case at issue, the Supreme Court confirmed the decision of the Court of Appeal, according to which the limitation period started to run from the date of the complaint that led to the ICA's investigation, since from that moment it was reasonably possible for the plaintiff to be aware of the possible abuse.
In the same month, the Milan Court of Appeal fully upheld a ruling of the Milan Court finding that SEA and Aeroporti di Roma (ADR) had put in place several anticompetitive practices in violation of Articles 101 and 102 TFEU.49 Inter alia, the Court of Appeal found that SEA and ADR were dominant in the markets for the management of goods and spaces necessary to provide commercial services in (1) the airports of Milan Malpensa and Linate, and (2) the airport of Rome Fiumicino, respectively. The Court of Appeal also confirmed that SEA and ADR had abused their dominant position because they had directly entrusted Truestar with exclusive rights to provide luggage wrapping services in their airports instead of organising a competitive tender, notwithstanding the fact that there was no specific obligation to do so. However, the Court dismissed the damages claim lodged by Safe Bag (i.e., Truestar's main competitor), on the ground that the plaintiff had not proven, to the required legal standard, that it would have had a reasonably high chance of winning the exclusive rights, had SEA and ADR organised competitive tenders.
In May 2019, the Court of Milan rejected a claim brought by Dipharma Francis, a company active in the market for the production and sale of urso-deoxycholic acid (UDCA, an ingredient used for the production of drugs for the treatment of serious liver diseases), against Industria Chimica Emiliana and Prodotti Chimici Alimentari, two leading pharmaceutical companies active in the market for the production and sale of colic acid, a raw material used for the production of UDCA.50 On the basis of a commitments decision issued by the ICA in 2015, the plaintiff claimed damages caused by a complex abuse of dominance, consisting in refusal to deal, excessive prices, price discrimination and margin squeeze.
The Court of Milan held that the findings of a commitments decision constitute evidence from which courts may legitimately infer the existence of a dominant position and an abuse. In the court's view, commitments decisions are issued after a complex investigation carried out by a public authority and, thus, should have evidentiary value in private antitrust litigation. Nonetheless, the Court rejected the idea that commitments can be compared to an out-of-court confession. As a consequence, courts cannot infer the existence of an abuse from a commitments decision, but should assess its evidentiary value on a case-by-case basis, in light of the principles established by the Italian Civil Procedure Code. In the case at hand, the Court of Milan held that the plaintiff had not provided sufficient evidence to support its allegations.
In November 2019, the Supreme Court set aside two judgments of the Milan Court of Appeal for failure to carry out a proper assessment of the relevant market.51 The case concerned the private actions brought by two online travel agencies against Ryanair for having refused to grant the right to sell tickets for its flights. The Milan Court upheld the plaintiffs' claims, but the ruling was annulled by the Court of Appeal. On appeal, the Supreme Court held that the Court of Appeal had mistakenly defined the relevant upstream market on which Ryanair was active as the market for intra-Union flights, instead of relying on the traditional definition, according to which each city (or airport) pairs constitute a separate relevant market. Moreover, according to the Supreme Court, the Court of Appeal did not adequately take into account the link between the upstream market for air transport flights and the downstream market for travel agency services.
In December 2019, the Court of Milan dismissed an action for damages brought by Enter against Telecom Italia (TIM) in follow-on litigation for an alleged abuse of dominance in the provision of wholesale access services, established and fined by the ICA in 2013.52 In the infringement decision, the ICA found that, in the period 2009-2011, TIM had abused its dominant position by communicating an unjustifiably high number of refusals to activate wholesale access services (KOs) to other authorised operators (such as Enter), which needed to access TIM's fixed network to provide electronic communications services to final consumers. In particular, the ICA found that the procedures for the provision of wholesale access services to competitors and to TIM's commercial divisions did not coincide, resulting de facto in higher percentages of KOs for competitors compared to TIM's commercial divisions. According to the ICA, the contested conduct was aimed at hindering the expansion of competitors in the markets for voice phone services and broadband internet access.
In the civil proceedings, the Court of Milan acknowledged that, based on settled case law, the decisions of the ICA constitute 'privileged evidence' of the nature and scope of the infringement. However, the claimant continues to bear the burden of proving, inter alia, that: (1) it was actually affected by the contested conduct; (2) it suffered damage; and (3) there was a causal link between the conduct and the alleged damage, on the basis of ordinary rules on burden of proof, with some adjustments to take into account the particular nature of private antitrust enforcement.
In the case at hand, according to the court, the claimant had not adequately established that it was actually harmed by the conduct fined by the ICA and that there was a causal link between such conduct and the alleged harm. In particular, the Court found that, in civil proceedings, the statistical analysis of the percentage incidence of the refusals to activate communicated to Enter – which in any case did not provide clear indications of discriminatory treatment – was not sufficient to demonstrate the alleged wrongdoing, as it could only constitute circumstantial evidence or reinforce further evidence. The available evidence showed that Enter regularly checked whether the refusals to activate communicated by TIM were actually justified by the circumstances provided for by sector-specific regulation. As the plaintiff had not specified which refusals to activate were in its view unjustified or excessive, the Court fully rejected its claims.
By contrast, in another follow-on action based on the ICA's decision in the A428 case, a non-final judgment issued by the Court of Rome in February 2020 found that the plaintiff (Siportal) had actually been harmed by the contested conduct.53 According to the Court, the available evidence, combined with the ICA's decision (which constituted 'privileged evidence' of the existence, nature and scope of the infringement), demonstrated that Siportal had been affected by TIM's alleged abuse.
On the other hand, the Court of Rome held that the independent technical expert's opinion on the quantification of damages was not reliable, as it did not identify an appropriate counterfactual scenario to estimate the percentage of KOs that could be considered excessive and the ensuing damages. The expert had assumed that all KOs were unjustified, notwithstanding that a refusal to activate may be due to several factors provided for by sector-specific regulation. Accordingly, the Court called for a new technical expert report to determine the amount of the alleged damages. Moreover, pursuant to Article 14(3) of Legislative Decree No. 3/2017 (implementing Article 17(3) of Directive 2014/104/EU), the Court asked the ICA to provide its guidance on the appropriate temporal and geographical benchmarks to estimate the alleged antitrust damages.
In the above-mentioned Siportal/TIM case, the Court rejected TIM's objection that Siportal's claim was time-barred, on the ground that the five-year limitation period had started running only from the publication of the ICA's final decision (i.e., May 2013). As Siportal started the proceedings against TIM in 2016, its action was not time-barred.
A different solution was adopted by the Supreme Court in another recent case, concerning a damages action brought by Uno Communications against Vodafone Italia.54 The case originated from the proceedings initiated by the ICA against Telecom Italia Mobile, Wind Telecomunicazioni and Vodafone for alleged abuse of dominance in the market for fixed-to-mobile calls. In May 2007, the ICA closed proceedings vis-à-vis Vodafone by accepting and making binding the commitments submitted by this company.55 By contrast, in August 2007, the ICA fined the two other investigated firms.56 In February 2012, UNO brought an action for damages against Vodafone, seeking compensation for the damage caused by alleged abuse of dominance and unfair competition acts, in connection with the facts investigated by the ICA. However, the Court of Milan ruled that UNO's claim was time-barred, due to the expiry of the five-year limitation period, which had started to run from the opening of the ICA's investigation.57 The judgment was later confirmed by the Milan Court of Appeal.58
In February 2020, the Supreme Court confirmed the ruling of the Court of Appeal. The Supreme Court analysed the case based on the legal framework that was applicable before the entry into force of Legislative Decree No. 3/2017, implementing Directive 2014/104/EU.
With respect to the limitation period, the Supreme Court argued that it is reasonable to assume that, while consumers may discover the existence of a cartel only when the ICA publishes an infringement decision, in exclusionary abuse cases, where claimants are usually competitors, market participants may become aware of the anticompetitive conduct even before the ICA publishes an infringement decision. In this scenario, the court has to carry out a case-by-case assessment aimed at evaluating the degree of competence and actual awareness of the person that suffered the alleged damage. In the case at hand, the Supreme Court emphasized that UNO was a competitor of Vodafone, operating in the same sector, and should have known about the alleged anticompetitive conduct since 2005, when the ICA opened the proceedings (and there was consequent wide media coverage of it) or, at the latest, since August 2007, when the ICA adopted the commitment decision with respect to Vodafone. Accordingly, the application of a five-year limitation period starting from the day the ICA opened the proceedings did not infringe the EU principle of effective judicial protection, according to which national procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law.
The Supreme Court also ruled on the evidentiary value of commitment decisions in follow-on cases. According to the Supreme Court, commitment decisions cannot have the same evidentiary value as infringement decisions (namely they do not constitute 'privileged evidence', based on principles applicable ratione temporis). However, commitment decisions cannot also have the same evidentiary value as decisions finding no infringement because they are usually adopted to remove the preliminary competition concerns raised by the ICA in the decision to open the proceedings. Moreover, in the specific case, the ICA accepted Vodafone's commitments after having issued a statement of objections. In the Court's view, this showed that, up to a very advanced stage in the proceedings, the ICA believed that Vodafone's conduct was unlawful. Therefore, the Supreme Court held that, in these cases, commitment decisions may give rise to a rebuttable presumption of unlawfulness of the contested conduct.
III MARKET DEFINITION AND MARKET POWER
The first step in abuse of dominance cases is the definition of the relevant product and geographical market.59 The ICA's general approach to market definition is consistent with the Commission's practice (in particular, the ICA typically focuses on demand-side60 and supply-side substitutability).61 Similarly, the ICA follows the EU notion of dominance.62
Market shares are a key factor in the assessment of dominance.63 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 highly fragmented.64 The stability of market shares is also important,65 but the fact that the market share is decreasing does not necessarily preclude a finding of dominance.66 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.67
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.68
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.69
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.70 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.71
Abuse is an objective concept. An anticompetitive intent is not a prerequisite for a finding of abuse.72 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.73 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.74
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.75
ii Exclusionary abuses
The ICA issued its first decision on predatory pricing in 1995 in Tekal/Italcementi.76 In accordance with EU case law,77 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 CJEU,78 and contrasts with US case law, which requires the proof of a reasonable likelihood of recouping the losses suffered by selling below cost.79
In Caronte,80 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.81
More recently, in TNT/Poste Italiane,82 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,83 whose judgment was upheld by the Council of State.84
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,85 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.86 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.87
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.88 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.89 A price squeeze may also be the result of discounts offered to retail customers.90
Exclusive dealing obligations may constitute an abuse under Article 3 when the conduct may significantly foreclose access to the market. In Diritti calcistici,91 the ICA found that Mediaset, the main Italian TV operator, violated Article 102 of the TFEU by abusing its dominant position on the national market for TV advertising. 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 when a dominant firm imposes de facto exclusivity through the threat of retaliation and other measures,92 or uses contractual clauses that lead to an exclusive commercial relationship,93 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.94 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.95
Traditionally, the treatment of loyalty discounts reflected the formalistic approach adopted in the past by EU institutions. Based on this approach, 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.96 However, in a judgment delivered in 2019, in line with the principles recently established by the CJEU in Intel,97 the TAR stated that the ICA must analyse the conditions, duration and amount of loyalty rebates, as well as the possible existence of a strategy aimed at excluding as efficient competitors from the market.98
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,99 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.100
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.101 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,102 dilatory strategies103 and other forms of constructive refusal to deal104 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.105
The ICA defines the notion of essential facility in accordance with principles established by EU case law.106 Intellectual property rights and information required to carry out an economic activity may also be considered essential facilities.107
The ICA has applied the principles on refusal to deal and essential facilities in a number of cases, especially in liberalised sectors.108 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 strict requirements set by the CJEU's case law,109 which in some recent cases has been criticised by the TAR.110
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.111
In principle, lack of capacity on a facility (capacity saturation) should constitute an objective justification.112 In exceptional circumstances, however, a dominant firm may be obliged to invest in the development of the facility. Indeed, in Eni-TTPC,113 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,114 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.115 For instance, charging lower prices to customers that purchase a larger amount of products, based on objective parameters, may be justified.116
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 resources,117 or applying discriminatory conditions.118 Non-price discrimination may also amount to an abuse of dominance.119 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.120
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.121 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 markets122 or in the past.123 In some cases, the ICA applied both the aforementioned tests in the assessment of prices charged by the dominant firm.124
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).125
In some cases, the ICA has fined a dominant company for having charged prices remunerating activities or services that were not rendered.126 In these cases, prices were considered by definition unfair. Article 3 also prohibits the direct or indirect imposition of unfair non-price trading conditions.127
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 in its 2014 fining guidelines.128
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.129
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.130
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.131
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.132
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.133 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.134 However, when complex assessments carried out by the ICA remain questionable, the administrative court cannot substitute its own assessment for that of the ICA.135 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.136
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).137
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.138
A collective action system has been introduced in the Italian legal system.139 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.140 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.141 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 April 2019, the Italian collective action system was reformed by Law No. 31 of 12 April 2019. The new rules, which will enter into force in November 2020,142 significantly amend the current procedure. The new regime will only apply to practices carried out after its entry into force.
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.143
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,144 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.145
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.
According to Legislative Decree 3/2017, ICA decisions which are no longer subject to judicial review constitute legal proof of antitrust infringements.146 Nevertheless, a claimant still has to prove the other requirements for civil liability, including the causal link between the conduct and the damage. Commitment decisions may also have evidentiary value, as they imply that an abuse was considered likely on the basis of an investigation carried out by the ICA.147
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.148 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.
Civil courts may also ask the ICA to provide guidance on the appropriate benchmarks and criteria to estimate the alleged antitrust damages, pursuant to Article 14(3) of the Decree.149
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.150
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
Public enforcement in Italy continues to be vibrant, thanks to the proactive stance taken by the ICA, whose decisions continue to largely reflect well-established EU principles. Likewise, private enforcement is expanding, also in abuse of dominance cases, also as a result of the introduction of Legislative Decree No. 3/2017 (implementing Directive 2014/104/EU).
On the other hand, it could be argued that Italian decision practice and case law is not always fully consistent with economic analysis insights. In many cases, the ICA and the administrative courts have considered 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,151 in which the ICA (and the TAR in the appeal against the Unilever decision) did not consider it necessary to run a price-cost analysis aimed at establishing the concrete risk of exclusion of equally efficient competitors, despite the novel approach outlined in the Intel judgment.152
The transition towards an effects-based approach would require a stronger and more penetrating judicial review by administrative courts. Indicative of this role of the Italian judicature is the recent CIN judgment, where the TAR made explicit reference to the Intel judgment and required the ICA to carry out an adequate economic analysis of loyalty-inducing schemes, taking into account the conditions, duration and amount of the rebates, as well as the possible existence of a strategy aiming at excluding as efficient competitors.153
A 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.154 In this respect, unfortunately, Legislative Decree No. 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 No. 3/2017, increases the tension between antitrust proceedings and the protection of fundamental rights. In fact, 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).
That being said, a review of the judgments adopted by administrative courts in 2019 and in the first months of 2020 shows a high percentage of ICA's decision (partially or totally) annulled, signalling a low deferential attitude of the administrative judges towards the national competition authority and, possibly, a desire to review more extensively and appraisingly its determinations.
Many cases recently decided by the ICA and national courts 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. The fact that a given practice is compatible with sector-specific regulation is not sufficient to exclude a possible antitrust infringement, as recently confirmed by the Aspen case.155 Another example of this intersection is provided by the Enel and Acea cases,156 where the ICA found that – on the verge of the full liberalisation of the electricity sector – the incumbents had a special responsibility not to jeopardise the liberalisation process. The use of competition law to impose additional and stricter obligations on firms already subject to pervasive sector-specific regulation raises delicate and complex issues as to the interplay between the two sets of rules.
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 law157 – 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.158
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.159
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.160 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 recent decision of the ICA in the Telecom Italia case seems to confirm the risk that the abuse of right doctrine, combined with an excessive reliance on the alleged intent, may result in adverse consequences, such as limiting the ability of a dominant firm to invest in infrastructure development to defend its commercial interests and market position, or restricting the exercise of the right of defence before courts and administrative authorities.161 Overall, the boundaries between legitimate exercise and abuse of right remain at least unclear and need to be clarified by competent authorities and courts 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. Between 2017 and 2019, the ICA issued commitment decisions in only six (out of 20) cases. In 2020, 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 civil courts tend to consider that commitment decisions may also have significant evidentiary value may reduce the incentive of firms to offer voluntary remedies.162 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, Gianluca Faella is counsel and Natalia Latronico is an associate 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 10 April 2019, No. 27635, A516, Gara affidamento servizi TPL Bolzano; 31 July 2019, No. 27878, A519, Affidamento diretto del servizio di trasporto pubblico ferroviario nel Veneto.
7 Decision of 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
8 Decision of 20 February 2019, No. 27568, A493B, Poste Italiane/Prezzi recapito.
9 Decision of 8 October 2019, No. 27947, A378E, Federazione italiana sport equestri.
10 Decision of 27 March 2019, No. 27609, A490C, Software processo civile telematico-Valutazione istanza revoca impegni.
11 Decision of 27 November 2019, No. 28001, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica.
12 In two cases, the ICA did not adopt any interim measure, because it did not find evidence that the contested conduct could jeopardise the continuation of the activities of a competitor pending the investigation on the merits of the case (decision of 7 March 2019, No. 27581, A523, Ticketone/Condotte escludenti nella prevendita dei biglietti), or the firms concerned had ceased the contested conduct (decision of 30 April 2019, No. 27666, A527, Comune di Genova/Distribuzione gas naturale). In another case, the ICA issued interim measures to prevent the possible exit of the only competitor from the market: see decision of 29 October 2019, No. 27961, A531, Riciclo imballaggi primari/Condotte abusive COREPLA.
13 Decision of 14 January 2020, No. 28082, A527, Comune di Genova/Distribuzione gas naturale.
14 Decision of 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
15 TAR, 4 June 2019, No. 7175; TAR, 1 August 2019, No. 9140 and 9141; TAR, 17 October 2019, No. 11954 and 11958.
16 TAR, 17 October 2019, No. 11960 and 11976.
17 TAR, 7 June 2019, No. 7463; TAR, 26 September 2019, No. 11330.
18 TAR, 16 January 2020, No. 503.
19 Council of State, 13 January 2020, No. 310 and 315; Council of State, 3 March 2020, No. 1547.
20 Council of State, 13 March 2020, No. 1832.
21 Decision of 20 February 2019, No. 27568, A493B, Poste Italiane/Prezzi recapito.
22 Decision of 13 December 2017, No. 26900, A493, Poste italiane/Prezzi recapito.
23 Decision of 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
24 Decision of 10 April 2019, No. 27635, A516, Gara affidamento servizi TPL Bolzano.
25 Decision of 31 July 2019, No. 27878, A519, Affidamento diretto del servizio di trasporto pubblico ferroviario nel Veneto.
26 Decision of 8 October 2019, No. 27947, A378E, Federazione italiana sport equestri.
27 Decision of 8 June 2011, No. 22503, A378C, Federitalia/Federazione Italiana Sport Equestri (FISE).
28 Decision of 14 January 2020, No. 28082, A527, Comune di Genova/Distribuzione gas naturale.
29 Decision of 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
30 TAR, 4 June 2019, No. 7175; decision of 28 February 2018, No. 27053, A487, Compagnia Italiana di Navigazione-Trasporto Marittimo delle Merci da/per la Sardegna.
31 Case C-413/14 P, Intel, ECLI:EU:C:2017:632, section 139.
32 TAR, 26 September 2019, No. 11330; decision of 25 September 2018, No. 27359, A508, Siae/Servizi Intermediazione Diritti d'Autore.
33 Case C-351/12, OSA, ECLI:EU:C:2014:110.
34 TAR, 17 October 2019, Nos. 11960 and 11976; decision of 20 December 2018, No. 27496, A513, Acea/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica. TAR, 17 October 2019, Nos. 11954 and 11958; decision of 20 December 2018, No. 27494, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica.
35 Case C-413/14 P, Intel, ECLI:EU:C:2017:632.
36 Council of State, 13 January 2020, No. 310 and 315.
37 Decision of 25 January 2012, No. 23243, A435, Comune di Prato-Estra Reti Gas.
38 TAR, 1 August 2019, No. 9140 and 9141.
39 Case T-336/07, Telefónica and Telefónica de España v Commission, ECLI:EU:T:2012:172, sections 72–73.
40 TAR, 16 January 2020, No. 503; decision of 12 December 2017, No. 26907, A503, Società iniziative editoriali/Servizi di rassegna stampa nella provincia di Trento.
41 Case C-418/01, IMS Health, ECLI:EU:C:2004:257, section 52.
42 Council of State, 3 March 2020, No. 1547; TAR, 7 June 2019, No. 7463.
43 Decision of 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino.
44 Council of State, 13 March 2020, No. 1832; TAR Lazio, 26 July 2017, No. 8945.
45 Decision of 29 September 2016, No. 26185, A480, Incremento prezzo farmaci Aspen.
46 Case C-27/76, United Brands, ECLI:EU:C:1978:22.
47 Court of Milan, 14 January 2019, No. 290.
48 Supreme Court, 5 July 2019, No. 18176.
49 Court of Appeal of Milan, 30 July 2019, No. 3362.
50 Court of Milan, 30 May 2019, No. 5122.
51 Supreme Court, 12 November 2019, No. 29237 and 29238.
52 Court of Milan, 18 December 2019, No. 11772; decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia.
53 Court of Rome, 26 February 2020, No. 4222; decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia.
54 Supreme Court, 27 February 2020, No. 5381; Court of Appeal of Milan, 20 July 2016, No. 3052.
55 Decision of 24 May 2007, No. 16871, A357, Tele 2/TIM-Vodafone-Wind.
56 Decision of 3 August 2007, No. 11731, A357, Tele 2/TIM-Vodafone-Wind.
57 Court of Milan, 3 April 2014, No. 4587.
58 Supreme Court, 27 February 2020, No. 5381; Court of Appeal of Milan, 20 July 2016, No. 3052.
59 See, for example, Supreme Court, 18 April 2018, No. 9579. See also Council of State, 3 March 2020, No. 1547, holding that an accurate definition of the relevant market is also necessary before adopting interim measures, in order to adequately assess possible competition concerns.
60 See, for example, decision of 28 June 2011, No. 22558, A415, Sapec Agro/Bayer-Helm; Council of State, 13 March 2020, No. 1832.
61 See, for example, decision of 17 December 1998, No. 6697, A 209, Goriziane/Fiat Ferroviaria.
62 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.
63 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.
64 See, for example, decision of 27 November 2003, No. 12634, A333, Enel Trade-Clienti Idonei.
65 See, for example, decision of 30 June 2010, No. 21297, A383, Mercato del cartongesso.
66 See, for example, decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
67 See, for instance, Council of State, 13 March 2020, No. 1832.
68 See decision of 3 August 2007, No. 17131, A357, Tele2/Tim-Vodafone-Wind.
69 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.
70 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.
71 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; TAR, 17 October 2019, Nos. 11954 and 11958.
72 See, for example, Council of State, 19 July 2002, No. 4001; TAR, 26 September 2019, No. 11330.
73 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; 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
74 See Council of State, 12 February 2014, No. 693; 8 April 2014, No. 1673; TAR, 27 March 2014, No. 3398.
75 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.
76 Decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
77 Case C-62/86, AKZO/Commission, 1991 ECR I-3359.
78 Case C-334/96, Tetra Pak/Commission, 1996 ECR I-5951.
79 Brook Group v. Brown & Williamson Tobacco, 509 US 940 (1993).
80 Decision of 17 April 2002, No. 10650, A267, Diano/Tourist Ferry Boat-Caronte Shipping-Navigazione Generale Italiana.
81 Decision of 24 October 2007, No. 17522, A372, Mercato del calcestruzzo cellulare autoclavato.
82 Decision of 14 December 2011, No. 23065, A413, TNT Post Italia/Poste Italiane.
83 TAR, 25 June 2012, No. 5769.
84 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.
85 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.
86 Decision of 12 November 2008, No. 19249, A375, Sfruttamento di informazioni commerciali privilegiate; Court of Appeal of Milan, 16 May 2006.
87 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.
88 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; 13 December 2017, No. 26900, A493, Poste italiane/Prezzi recapito; 7 March 2019, No. 27582, A505, Monte Titoli/Servizi di post-trading.
89 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.
90 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.
91 Decision of 28 June 2006, No. 15632, A362, Diritti calcistici.
92 See, for example, decision of 25 July 2017, No. 26704, A499, Assicurazioni agricole/Comportamenti escludenti Codipra.
93 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).
94 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; 13 December 2017, No. 26900, A493, Poste italiane/Prezzi recapito; 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
95 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.
96 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.
97 Case C-413/14 P, Intel, ECLI:EU:C:2017:632.
98 TAR, 4 June 2019, No. 7175.
99 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.
100 Decision of 25 September 2018, No. 27359, A508, SIAE/Servizi intermediazione diritti d'autore. This decision was upheld by TAR, 26 September 2019, No. 11330.
101 See, for example, decision of 14 March 2018, No. 27089, A507, Servizio rifornimento carburante avio.
102 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.
103 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. See also decision of 25 January 2012, No. 23243, A435, Comune di Prato-Estra Reti Gas, which was annulled by Council of State, 13 January 2020, Nos. 310 and 315.
104 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.
106 See, for example, decision of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento.
107 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, which was annulled by TAR, 16 January 2020, No. 503.
108 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.
109 See, for example, decision of 15 June 2005, No. 14388, A364, Merck-Principi attivi; TAR, 3 March 2006, No. 341.
110 TAR, 16 January 2020, No. 503.
111 See, for example, decision of 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma.
112 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.
113 Decision of 15 February 2006, No. 15174, A358, Eni-Trans Tunisian Pipeline.
114 Commission decision of 29 September 2010, case COMP/39.315, ENI.
115 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.
116 Court of Appeal of Milan, 7 November 2017.
117 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, subsequently annulled by TAR, 17 October 2019, Nos. 11960 and 11976.
118 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.
119 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.
120 See, for example, decision of 28 February 2018, No. 27503, A487, Compagnia Italiana di Navigazione – Trasporto marittimo delle merci da/per la Sardegna.
121 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.
122 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.
123 See, for example, decision of 4 May 2017, No. 26562, A498A, Enel – Prezzi servizi di dispacciamento area Brindisi.
124 See, for example, decisions of 15 November 2001, No. 10115, A306, Alitalia/Veraldi; 10 April 1992, No. 452, A4, Ancic/Cerved.
125 Decision of 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci, upheld by TAR, 26 July 2017, No. 8945, and by Council of State, 13 March 2020, No. 1832.
126 See, for example, decision of 23 May 2002, No. 10763, A299, International mail express/Poste Italiane.
127 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).
128 See Guidelines on the method of setting pecuniary administrative fines pursuant to Article 15, paragraph 1, of the Competition Act, ICA's resolution of 22 October 2014, No. 25152.
129 See, for example, decision of 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino. This decision was annulled by Council of State, 3 March 2020, No. 1547, on the grounds that the ICA did not meet the legal standard for the adoption of interim measures. According to the Council of State, if it is interpreted in compliance with the relevant EU law provisions, Article 14 bis of the Competition Act requires that the ICA adopts interim measures, consisting in an anticipation of the exercise of its powers, only when its theory of harm is already clear.
130 See, in particular, TAR, 27 February 2007, No. 1745; 15 January 2007, No. 203.
131 Commitments may be revoked if the ICA finds that, given the changes in market conditions and the competitive scenario, they are no longer justified: see decision of 27 March 2019, No. 27609, A490C, Software processo civile telematico-Valutazione istanza revoca impegni.
132 See Council of State, 2 March 2009, No. 1190.
133 See Council of State, 19 July 2002, No. 4001 and, more recently, TAR, 10 March 2003, No. 1790.
134 See, for example, Council of State, 6 May 2014, No. 2302; 20 February 2008, No. 597; 8 February 2007, No. 515. See also Council of State, 13 January 2020, No. 310 and 315.
135 See, for example, Council of State, 6 May 2014, No. 2302; 24 September 2012, No. 5067.
136 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.
137 ECHR, case No. 43509/08, A Menarini Diagnostics/Italy.
138 Supreme Court, 4 February 2005, No. 2207.
139 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.
140 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.
141 Individuals can decide not to join the class and file a separate lawsuit on their own.
142 See Article 8(5) of Law Decree No. 162 of 30 December 2019, converted into Law No. 8 of 28 February 2020.
143 Court of Appeal of Naples, 28 June 2007, No. 2513.
144 Court of Appeal of Milan, 18 July 1995 and 24 December 1996.
145 Court of Appeal of Milan, 16 September 2006; Court of Milan, 15 March 2018, No. 3011; 27 July 2018, No. 8374. See also Court of Milan, 14 January 2019, No. 290.
146 Based on the principles established by Italian case law, ICA's decisions adopted before the entry into force of the Decree are not binding in civil proceedings, but constitute privileged evidence, from which a court can legitimately infer the existence of the alleged infringement. See, among others, Supreme Court, 5 July 2019, No. 18176; Court of Milan, 14 January 2019, No. 290; Court of Milan, 18 December 2019, No. 11772; Court of Rome, 26 February 2020, No. 4222.
147 Supreme Court, 27 February 2020, No. 5381. See also Court of Milan, 28 July 2015, No. 9109, and Court of Milan, 30 May 2019, No. 5122.
148 Supreme Court, 4 June 2015, No. 11564; see also Supreme Court, 1 April 2016, No. 6366; Supreme Court, 12 November 2019, Nos. 29237 and 29238.
149 See Court of Rome, 26 February 2020, No. 4222.
150 Italian civil courts have ruled in many instances on the issue of the starting point of the limitation period in cases that are not subject to the Decree ratione temporis. In principle, the limitation period starts to run when the claimant perceives, or can reasonably be expected to perceive, all the information needed to start a civil action, including the contested behaviour, the fact that it constitutes an antitrust infringement, the damage and the causal link. See, e.g., Supreme Court, 5 July 2019, No. 18176. This analysis must be carried out on a case-by-case basis, in light of all relevant circumstances. In practice, civil courts have adopted different solutions, which are not always consistent. For instance, in case of civil actions brought by competitors, Italian courts have considered that the limitation period started to run from the date of the complaint leading to the ICA's proceedings (see, e.g., Supreme Court, 5 July 2019, No. 18176), the publication of the ICA's decision to start proceedings (see, e.g., Supreme Court, 27 February 2020, No. 5381), or the publication of the ICA's final decision (see, e.g., Court of Rome, 26 February 2020, No. 4222).
151 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.
152 Case C-413/14 P, Intel, ECLI:EU:C:2017:632. See also, in this respect, decision of 20 December 2018, No. 27494, A511, Enel/Condotte anticoncorrenziali nel mercato della vendita di energia elettrica, confirmed by TAR, 17 October 2019, No. 11954 and 11958, in which the TAR reiterated the view by which, in analysing an alleged abuse, 'object and effect tend to be indistinguishable'.
153 TAR, 4 June 2019, No. 7175.
154 Judgment of 27 September 2011, A Menarini Diagnostics SRL v. Italy, application No. 43509/08.
155 Decision of 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci, upheld by Council of State, 13 March 2020, No. 1832.
156 Decisions of 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.
157 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.
158 Council of State, 12 February 2014, No. 693.
159 Decision of 25 March 2015, No. 25397, A474, SEA/Convenzione ATA; TAR, 23 January 2017, No. 1188.
160 See, for example, decision of 3 September 2015, No. 25035, A476, Conai-Gestione rifiuti da imballaggi in plastica.
161 Decision of 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
162 Supreme Court, 27 February 2020, No. 5381. See also Court of Milan, 28 July 2015, No. 9109, and Court of Milan, 30 May 2019, No. 5122.