The Dominance and Monopolies Review: Italy
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 may provide useful indications on the interpretation of Article 3 of the Competition Act.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
Year in review
In 2020, the ICA closed four investigations regarding abuse of dominance. In three 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 2020, the ICA also conducted two proceedings regarding the possible submission of untruthful information and documents following a request for information by the ICA in the context of an abuse of dominance investigation, both concluded with the imposition of a fine.8
At the beginning of 2021, the ICA issued an additional decision, accepting and making binding the commitments offered by the investigated firm.9
In 2020, Italian administrative courts also adopted several decisions on abuse of dominance. In particular, in January 2020, the Regional Administrative Tribunal of Latium (TAR) upheld an appeal against a decision adopted by the ICA in 2017,10 and in December 2020, it quashed an infringement decision issued by the ICA in 2014.11 The Council of State annulled two decisions adopted by the ICA in 2012 and 2018, respectively,12 and rejected an appeal against a judgment delivered by the TAR in 2017.13
In the first months of 2021, the Council of State partially upheld an appeal brought by the ICA against a judgment of the TAR issued in 2014.14
In 2020 and the first months of 2021, Italian civil courts also dealt with a number of abuse cases, which address several aspects of antitrust damages actions.
The abuse cases in the period under review concerned many different practices, including predatory pricing, exclusive dealing, refusal to deal, discriminatory practices, abuse of right, excessive pricing and unfair trading terms.
i Antitrust investigations
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 undertakings concerned.15 In its preliminary assessment, the ICA had found that the incumbents could have individually infringed Article 102 of the TFEU by abusing their dominant position as current exclusive concessionaires of gas distribution in the local markets included in the area of ATEM Genoa 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.
A similar decision was adopted in February 2021, when the ICA made legally binding the commitments offered by the Italian gas distributor Italgas to address the concerns raised by a possible abuse in the market for the provision of natural gas distribution services in the area of Venice.16 The investigation was initiated in May 2020 following a complaint filed by the municipality of Venice (which acted as the contracting authority for the area of Venice), alleging that Italgas was abusing its dominant position by refusing to supply information deemed essential to launch an open tender procedure for the local provision of gas distribution services. According to the complainant, Italgas' conduct was stalling efforts to establish competitive gas distribution bidding procedures in the area of ATEM Venice 1 (i.e., the territorial district including eight municipalities adjacent to Venice). In the area of Venice, Italgas controlled approximately 97 per cent of the natural gas distribution market, and had operated for more than 40 years under a legal monopoly through a distribution concession agreement with the municipality of Venice (expired in 2012). According to the ICA, Italgas had at its exclusive disposal data and information essential to prepare the tender documents. Accordingly, its alleged refusal or delay in supplying it to the municipality of Venice could amount to an abuse aimed at slowing down the launch of the tender. To remedy the competitive concerns raised by the ICA, Italgas committed to provide the contracting authority with all essential data and financial information related to its distribution services, with a view to assisting the municipality of Venice in establishing new gas distribution tenders.
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.17
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 an infrastructure capable of supporting 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 programmes and do not have an interest in doing so in the next three years; 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 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, 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 aimed at preventing any inappropriate use of network information.
In March 2020, in the context of an ongoing investigation against the TicketOne Group concerning an alleged abuse of dominance in the market for ticketing services for pop music concerts, the ICA closed two sub-proceedings against two promoters of live music events in Italy, namely Friends & Partners and Vivo Concerti, by imposing a fine of over €50,000 on each party under Article 14(5) of the Competition Act, for having submitted untruthful information and documents following a request for information by the ICA.18
The ICA had requested the two firms to provide detailed information on the agreements they had respectively entered into with the TicketOne Group, which had acquired control over the two promoters a few years before. Both companies denied being in possession of these agreements, but following dawn raids the ICA found the documents requested. As a consequence, the ICA imposed administrative fines on the two companies.
Interestingly, these two parallel decisions mark the second application of Article 14(5) of the Competition Act by the ICA,19 after the first one that dated back 30 years.
In October 2020, the ICA fined the Italian Consortium for the Collection, Recycling and Recovery of Plastic Packaging (COREPLA) around €27 million for an alleged abuse of dominance in the market for the management of plastic waste recycling services.20 For a number of years, COREPLA was the sole consortium in Italy authorised to provide extended producer responsibility compliance services for household plastic waste,21 until another consortium, CORIPET, entered the market in 2018 and was granted a temporary licence to operate by the Italian Ministry of Environment. The temporary licence was subject to CORIPET achieving the objectives of effectiveness, efficiency and self-sufficiency within two years.
In April 2019, following a complaint filed by CORIPET, the ICA opened an investigation into COREPLA's alleged exclusionary practices, including its claiming of exclusive rights on all the household plastic waste, as well as its enforcement of exclusive clauses in the agreements in force with the local authorities and the sorting plants.
In its final decision, the ICA established that COREPLA had engaged in four practices aimed at making it impossible for CORIPET to meet the objectives required by the Ministry. First, COREPLA enforced exclusivity clauses in its contracts with local authorities and sorting plants to prevent CORIPET from entering into an agreement with them. Second, following an auction organised by CORIPET to try to sell at least part of the plastic waste it was entitled to manage, COREPLA allegedly warned sorting plants not to deliver the plastic waste to the auction winners, thus forcing CORIPET to annul the auction. Third, COREPLA allegedly implemented a predatory strategy, as it kept managing the totality of plastic waste, notwithstanding that the payments received from its members were no longer sufficient to cover total costs, due to the fact that some members had joined the other consortium. In the ICA's view, COREPLA's conduct was based on the expectation to recover all the lost profits after CORIPET's exit from the market. Finally, COREPLA allegedly refused to reach an agreement with CORIPET allowing the latter to manage a quota of the plastic waste.
In December 2020, the ICA concluded its investigation concerning the TicketOne Group's alleged abuse of dominance in the market for ticketing services for pop music concerts, by imposing a joint and several fine of approximately €10 million on the corporate entities belonging to the TicketOne Group, including five promoters of live pop music events in Italy (together, the promoters), which the TicketOne Group had indirectly acquired between September 2017 and April 2018.22 The fine was reduced by 70 per cent in light of the coronavirus crisis and the serious economic crisis affecting the relevant industry.
According to the ICA, the TicketOne Group was dominant in the market for ticketing services for pop music concerts, due to the market dynamics resulting from long-standing agreements between TicketOne and some of the main organisers of pop music concerts in Italy (which were in force between 2002 and 2017). Against this background, the ICA found that the TicketOne Group carried out a single and complex abusive strategy, which foreclosed access to the relevant market from both current and potential competing ticketing operators. In particular, the alleged exclusionary strategy consisted of:
- entering into exclusive agreements with promoters from 2013 to 2018;
- acquiring the companies Di and Gi, Friends & Partners, Vertigo and Vivo Concerti, to establish a 'captive relationship' with these operators, by virtue of which all tickets for events produced or organised by these companies were no longer made available to competing ticketing operators;
- imposing exclusivity clauses on local promoters, in favour of TicketOne;
- signing commercial agreements containing exclusivity clauses with smaller or local ticketing operators, pursuant to which the latter entrusted TicketOne with the exclusive mandate to distribute tickets for all their events; and
- implementing boycott and retaliatory measures against a number of operators (such as Zed Entertainment's World, Sol Eventi and Ticketmaster Italia), which refused to comply with the terms and conditions imposed by TicketOne.
The ICA found that the TicketOne Group's exclusionary strategy resulted in the foreclosure of approximately 60 per cent of the relevant market and had detrimental effects on end-users, as it deprived them of the potential benefits of multi-homing (i.e., the simultaneous use of more platforms).
In addition to imposing a pecuniary sanction, the ICA ordered TicketOne and the promoters to: (1) allow other ticketing operators to sell, by any means and through any channel, under fair and non-discriminatory terms, at least 20 per cent of the tickets for events produced or distributed by the promoters or ticketing operators tied to the TicketOne Group by exclusivity clauses; and (2) refrain from imposing exclusivity clauses on local promoters that had acquired the right to organise specific events from national promoters.
Abuse cases concluded by the ICA in 2020 and in the first months of 2021
|Sector||Case||Conduct||Date of decision||Fine imposed / commitments|
|Gas distribution||A527 – Comune di Genova/Distribuzione gas||Delay in the transmission of information deemed essential for organising a tender procedure and, ultimately, partial response to repeated requests by the contracting authority||14 January 2020||Commitments|
|Telecommunications||A514 – Condotte Fibra Telecom Italia||Complex exclusionary strategy aimed at limiting the development of competition in the wholesale and retail markets for broadband and ultra-broadband electronic communications services in Italy, through the obstruction of tenders launched to promote the entry of new infrastructure operators, exclusionary prices and tying||25 February 2020||€116,099,937.60|
|Waste recycling||A531 – Riciclo imballaggi primari/Condotte abusive COREPLA||Various practices aimed at hindering the entry to the market of the incumbent's only competitor, including refusal to deal, predatory pricing, obstruction of tender procedures and enforcement of exclusivity clauses||27 October 2020||€27,400,477|
|Live pop music entertainment||A523 –TicketOne/Condotte escludenti nella vendita di biglietti||Single and complex abusive strategy aimed at foreclosing access to the relevant market from both current and potential competing ticketing operators through, among other things, boycott and retaliatory measures and the imposition of exclusivity clauses||22 December 2020||€10,868,472|
|Gas distribution||A540 – Condotte abusive Italgas/ATEM Venezia 1||Refusal to give access to information deemed essential by the contracting authority to prepare the documentation required to launch a tender procedure||23 February 2021||Commitments|
Ongoing abuse investigations opened by the ICA
|Sector||Case||Conduct||Opening of the case*|
|Healthcare||A517 – Mercati di manutenzione di dispositivi diagnostici||Refusal to license software and resources and obstacles to the supply of spare parts||January 2018|
|Transport||A521 – Attività di intermediazione della domanda di servizi taxi nel comune di Torino||Imposition of a non-compete clause on taxi drivers participating in the network of a firm managing radio taxi services in Turin||October 2018|
|E-commerce||A528 – FBA/Amazon||Discrimination between sellers using Amazon's own logistics services and those relying on third-party services||April 2019|
|Smart mobile operating systems and apps||A529 – Google/Compatibilità app Enel X Italia con sistema Android auto||Refusal by Google to integrate Enel X's electric vehicle charging app into Android Auto (an app for Android smartphones allowing the safe projection of apps on a vehicle's embedded screen)||May 2019|
|Pharmaceuticals||A524 – Leadiant Bioscences/Farmaco per la cura della xantomatosi cerebrotendinea||Excessive pricing of an orphan generics drug||October 2019|
|Plastic||A537 – Mercato della produzione di contenitori in PET||Reduced interoperability between Husky equipment and competitors' 'generic' moulds, deterring customers from using those moulds||January 2020|
|Transport||A536 – Regione Toscana/Gara per l'affidamento del servizio di trasporto pubblico locale||Dilatory and stalling strategies aimed at interfering with a tender procedure concerning the provision of passenger transport services in the Tuscany region||June 2020|
|Transport||A541 – Servizi traghettamento veicoli stretto di Messina||Excessive pricing compared to those charged by the incumbent's competitors, not justified by the costs of the services provided||July 2020|
|Display advertising||A542 – Google nel mercato italiano del display advertising||Refusal by Google to provide competitors with access to data for the design of display advertising campaigns||October 2020|
|* Date on which the Italian Competition Authority opened its investigation|
ii Administrative court rulings
In 2020, Italian administrative courts adopted some important 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.23 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.24
In August 2019, the TAR partially upheld the appeal lodged by Estra against the decision.25 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).26
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.27 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 terms to any operator requesting it.
Based on established principles on refusal to license intellectual property rights,28 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 2019,29 which had confirmed a decision imposing interim measures.30
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 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.31
In March 2020, the Council of State rejected the appeal lodged by Aspen against a judgment issued by the TAR in July 2017,32 which had confirmed the ICA's decision to fine Aspen over €5 million for excessive pricing.33 In the decision, adopted in September 2016, the ICA found that through an aggressive negotiation strategy with the Italian Medicines Agency, Aspen had obtained price increases of 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 Court of Justice of the European Union (CJEU) in United Brands to assess excessive prices.34 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.
In December 2020, the TAR quashed an infringement decision issued by the ICA35 against the public utility company Hera Holding Energia Risorse Ambiente (Hera) and its subsidiary Herambiente.36 The ICA found that Hera abused its dominant position in the markets for the collection of waste paper in a number of municipalities in the region of Emilia-Romagna, for having favoured Akron (Herambiente's subsidiary active in downstream markets for the production and sale of waste paper intended for paper mills) to the detriment of competitors.
The ICA alleged that the dominant position of Hera in the upstream market for the collection of waste paper from public surfaces enabled Herambiente to have a dominant position in the downstream market for the sale of waste paper in various municipalities in Emilia-Romagna. According to the ICA, Hera transferred the waste paper collected directly to Akron at a price lower than the market price, without any fair, transparent and non-discriminatory comparison with competitors' offers. Such conduct amounted to: (1) an exclusionary abuse, in the form of input foreclosure, since Akron's competitors were foreclosed from competing in the downstream markets for the sale of pulp to the paper mills; and (2) an exploitative abuse, arising from the transfer of waste paper to Akron at a price lower than market price, as the lower revenues earned by Hera resulted in an increase in the tariffs paid by residents for urban hygiene services in the municipalities in which Hera managed waste collection.
In its rulings, the TAR upheld Hera's argument that the ICA had overlooked the fact that Hera was entrusted with the provision of a public service. Hera had to ensure continuity, safety and efficiency of the entire waste cycle, including the final recovery phase. Also in light of the principles established by the CJEU in Intel,37 the TAR held that the ICA had erred in finding an infringement only on the basis of the fact that Hera had not conducted a tender procedure to select the entity responsible for the recovery phase. In particular, the ICA did not adequately take into account the arguments put forward by Hera, according to which, among other things: (1) the decision to entrust the waste recovery service to a company belonging to the same group represented the most efficient way of fulfilling Hera's legal duty, maintaining the quality of the management service under Hera's direction; (2) Akron had a number of technologically advanced waste treatment facilities, which were not available to other operators active in the same area; and (3) Akron had high-level economic and financial standing in the long term, unlike its potential competitors. Against this background, according to the TAR, the ICA failed to establish whether Hera's decision to entrust the service within the group aimed at excluding Akron's as-efficient competitors (AECs) from the market, and to prove that competitors submitted offers comparable to Akron's services in terms of quality.
In February 2021, the Council of State confirmed the ICA's finding that Rete Ferroviaria Italiana (RFI), the Italian railway network manager, and Trenitalia, an Italian railway transport operator, had unlawfully engaged in dilatory tactics in the context of proceedings before administrative authorities, to hinder access of a new entrant, Arenaways, to the railway passenger transport sector.38 However, the administrative court ruled that the parent company of RFI and Trenitalia, Ferrovie dello Stato (FS), also fined by the ICA for abuse of dominance, could not be held personally liable for the conduct.
In 2012, the ICA imposed a fine of approximately €300,000 jointly on FS, RFI and Trenitalia.39 The ICA established that FS had implemented a single and complex exclusionary strategy, through and together with its wholly owned subsidiaries RFI and Trenitalia. In particular, RFI engaged in dilatory tactics to delay the procedures triggered by Arenaways' request for railway network capacity allocation. At the same time, Trenitalia supplied misleading information to the railway services regulator and reorganised its offer to saturate the railway network capacity or to overlap with the routes and schedules requested by Arenaways.
In 2014, the TAR quashed the ICA decision. In the court's view, the ICA: (1) wrongly characterised as dilatory tactics a legitimate and genuine consultation opened by RFI with the authorities concerned to solve objective technical difficulties connected to Arenaways' requests; and (2) encroached on the railway service regulator's competence by questioning the conclusions reached by the authority.
The Council of State partially upheld the appeal brought by the ICA against the TAR judgment. The supreme administrative court confirmed that the conduct of RFI and Trenitalia amounted to an abuse of dominance. In particular, the Council of State found that: (1) RFI had unduly prolonged or initiated unnecessary consultation processes, thus stalemating Arenaways' request for railway network capacity allocation; and (2) Trenitalia had presented the information requested by the railway regulatory authority in a misleading way, thus inducing it to favour Trenitalia to the detriment of Arenaways.
By contrast, the Council of State held that the ICA had wrongly found a personal liability of FS for having implemented an exclusionary strategy through its subsidiaries RFI and Trenitalia. According to the Council of State, the ICA cannot merely rely on the control relationship between companies to establish the personal liability of a parent company, where the abusive conduct has been put in place by one of its wholly owned subsidiaries. The ICA must also prove that the parent company actually exercised an influence over the specific abusive conduct of the subsidiary, even indirectly. According to the Council of State, in the present case:
- FS did not have any power of direction and coordination over the specific railway network management functions exercised by RFI that were involved in the contested conduct;
- the ICA failed to prove the alleged role played by FS in shaping the exclusionary strategy implemented by RFI and Trenitalia;
- there was no evidence that FS would have derived an immediate economic advantage from the abusive conduct of its subsidiaries; and
- there were no interlocking directorates and there was only a customary flow of information between the parent company and its subsidiaries.
Having ruled out FS's involvement in the abuse, the Council of State halved the fines levied on RFI and Trenitalia.
iii Civil court rulings
In 2020 and the first months of 2021, 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, limitation period and the conditions for the admissibility of a request for an expert's prior assessment of damages.
In February 2020, in follow-on litigation for an alleged abuse of dominance in the provision of wholesale access services, established and fined by the ICA in 2013,40 a non-final judgment issued by the Court of Rome found that the plaintiff (Siportal) had actually been harmed by the contested conduct.41 In the infringement decision, the ICA found that, between 2009 and 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, which needed to access TIM's fixed network to provide electronic communications services to final customers. 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, and resulted 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.
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. 3/201742 (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 (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.43 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 against Vodafone by accepting and making binding the commitments submitted by this company.44 By contrast, in August 2007, the ICA fined the two other investigated firms.45 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.46 The judgment was later confirmed by the Milan Court of Appeal.47
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 3/2017. 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 emphasised 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 took a similar position on the limitation period in another ruling delivered in April 2020, which dismissed a follow-on damages claim brought by Uno against TIM on the grounds it was time-barred.48 In line with the parallel ruling issued in February 2020, the Supreme Court restated the principle that the dies a quo of the limitation period must be assessed on a case-by-case basis. In the present case, because Uno was a professional operator that competed with Telecom in the same market and was presumably aware of the alleged abuse even before the ICA started proceedings, the Supreme Court held that the five-year limitation period had started to run from the day on which the ICA started its investigation.
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.
In April 2020, the Supreme Court confirmed a judgment issued by the Milan Court of Appeal, which had upheld the damages claim filed by Brennercom against TIM,49 on the basis of the same decision issued by the ICA in 2007.50
In 2010, Brennercom brought an action against TIM, seeking compensation for the damages caused by the alleged abuse of dominance ascertained by the ICA. In 2013, the Court of Milan upheld Brennercom's claims.51 In particular, the Court of Milan found that the damages suffered by Brennercom did not result from a diversion of clientele (which had not been proved by the claimant), nor from excessive prices allegedly charged by TIM for its wholesale services. In the Court's view, the damages were caused by a margin squeeze, stemming from the fact that the conditions applied by TIM to Brennercom for the supply of wholesale termination services were less favourable than those applied to the incumbent's own commercial divisions. As a consequence, TIM forced Brennercom to operate in the downstream market for the supply of fixed-to-mobile services with profit margins lower than those that could have been obtained without the abuse. The Court of Milan concluded that Brennercom had suffered damages equal to €433,000, which were quantified by a court-appointed expert on the basis of a counterfactual analysis (because it was not possible to determine the internal prices charged by TIM to its commercial division and, accordingly, to estimate the difference between that and the price charged to Brennercom). On appeal, the Milan Court of Appeal confirmed the findings of the first instance court, but increased the awarded damages to around €516,000.
The Supreme Court fully upheld the judgment of the Court of Appeal. In particular, with respect to the causal link between the alleged abusive conduct and the damage, the Supreme Court held that, based on the ICA's findings, competitors had to pay TIM a higher price for wholesale termination services than the price applied to the incumbent's own commercial divisions. According to the Supreme Court, the circumstantial evidence provided by Brennercom demonstrated that the contested practice squeezed its margins, as it was forced to operate in the downstream market for the supply of fixed-to-mobile services with profit margins lower than those that could have been obtained without the abuse. The damage stemming from the alleged discriminatory practice had to be ascertained through an analysis of the counterfactual scenario (i.e., the economic situation in the absence of the contested conduct).
Moreover, the Supreme Court agreed with the Court of Appeal that the first instance judgment had not wrongly reversed the burden of proof, but it had correctly taken into account the high evidentiary value of ICA's decisions in follow-on actions. As the ICA had found that TIM's alleged anticompetitive offers in the downstream market were addressed to its entire business clientele, TIM had the burden of proving that all its retail offers were directed to customers for which there was no actual or potential competition with Brennercom and, thus, no damage could have arisen as a consequence of the alleged discriminatory treatment in the wholesale market. As TIM had not provided such evidence, the Court of Appeal could conclude that there was a causal link between the contested conduct and the alleged damage.
In the first months of 2021, the Court of Milan rejected as inadmissible a request for an expert prior assessment of damages submitted by 7 Pixel against Google52 on the basis of the decision of the European Commission in the Google Search (Shopping) case.53
In 2017, the Commission imposed a record-breaking fine of €2.42 billion on Google, finding that it had leveraged its dominant position in the market for general internet search into the market for comparison shopping services (CSSs), by favouring its own shopping comparison service (Google Shopping) in general search results, to the detriment of third-party CSSs.
Following the Commission's decision, 7 Pixel (which is active in the Italian market for online CSSs through several websites) asked the Court of Milan to appoint an expert to carry out a prior assessment of the damages allegedly suffered by the claimant under Article 696 bis of the Italian Code of Civil Procedure. The prior technical assessment under Article 696 bis is carried out before the initiation of the judicial proceedings on the merits of the case and is aimed at reaching a settlement between the parties, thereby avoiding a lengthier litigation.
The Court of Milan stated that the request for a prior technical assessment may be considered admissible only when the case does not require to solve complex legal issues or appreciate facts that are outside the scope of the technical assessment. In the Court's view, such conditions were not met in the case at issue. In particular, the Court noted that: (1) the decision issued by the Commission was not final and the required elements for damage claims had not been ascertained yet; (2) pursuant to Article 16(1) of Regulation (EC) No. 1/2003, a national court may opt to stay proceedings concerning alleged infringements found by a Commission decision where that decision is still subject to judicial review before the EU courts, so as to avoid reaching a judgment that is irreconcilable with the outcome of the proceedings pending before the EU courts; and (3) the non-final nature of the Commission decision and the pleas raised by Google in its action for annulment before the EU General Court directly impinged on the potential finding of liability for antitrust infringement, as well as on the casual link requirement.54 Furthermore, as 7 Pixel's claims extended to periods not covered by the Commission decision, the Court of Milan held that the case should be considered a stand-alone action and, thus, 7 Pixel should have fully discharged the evidential burden with regard to the unlawful conduct and its consequences.
Market definition and market power
The first step in abuse of dominance cases is the definition of the relevant product and geographical market.55 The ICA's general approach to market definition is consistent with the Commission's practice (in particular, the ICA typically focuses on demand-side56 and supply-side substitutability).57 Similarly, the ICA follows the EU notion of dominance.58
Market shares are a key factor in the assessment of dominance.59 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.60 The stability of market shares is also important,61 but the fact that the market share is decreasing does not necessarily preclude a finding of dominance.62 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.63
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.64
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.65
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.66 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.67
Abuse is an objective concept. An anticompetitive intent is not a prerequisite for a finding of abuse.68 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.69 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.70
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.71
ii Exclusionary abuses
The ICA issued its first decision on predatory pricing in 1995 in Tekal/Italcementi.72 In accordance with EU case law,73 the ICA held that prices below the average variable cost (AVC) must be presumed unlawful, while prices between the 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,74 and contrasts with US case law, which requires the proof of a reasonable likelihood of recouping the losses suffered by selling below cost.75
In Caronte,76 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.77
More recently, in TNT/Poste Italiane,78 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,79 whose judgment was upheld by the Council of State.80
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,81 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.82 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.83
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.84 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.85 A price squeeze may also be the result of discounts offered to retail customers.86
Exclusive dealing obligations may constitute an abuse under Article 3 when the conduct may significantly foreclose access to the market. In Diritti calcistici,87 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,88 or uses contractual clauses that lead to an exclusive commercial relationship,89 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.90 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.91
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.92 However, in a judgment delivered in 2019, in line with the principles recently established by the CJEU in Intel,93 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 AECs from the market.94
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,95 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.96
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.97 Practices such as refusal to begin negotiations,98 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,99 dilatory strategies100 and other forms of constructive refusal to deal101 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.102
The ICA defines the notion of essential facility in accordance with principles established by EU case law.103 Intellectual property rights and information required to carry out an economic activity may also be considered essential facilities.104
The ICA has applied the principles on refusal to deal and essential facilities in a number of cases, especially in liberalised sectors.105 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,106 which in some recent cases has been criticised by the TAR.107
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.108
In principle, lack of capacity on a facility (capacity saturation) should constitute an objective justification.109 In exceptional circumstances, however, a dominant firm may be obliged to invest in the development of the facility. Indeed, in Eni-TTPC,110 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,111 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.112 For instance, charging lower prices to customers that purchase a larger amount of products, based on objective parameters, may be justified.113
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,114 or applying discriminatory conditions.115 Non-price discrimination may also amount to an abuse of dominance.116 Furthermore, discriminatory practices may be prohibited when they aim at penalising customers that also deal with other operators to prevent the entry or limit the growth of competitors.117
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.118 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 markets119 or in the past.120 In some cases, the ICA applied both the aforementioned tests in the assessment of prices charged by the dominant firm.121
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).122
In some cases, the ICA has fined a dominant company for having charged prices remunerating activities or services that were not rendered.123 In these cases, prices were considered by definition unfair. Article 3 also prohibits the direct or indirect imposition of unfair non-price trading conditions.124
Remedies and sanctions
Pursuant to Article 15 of the Competition Act, the ICA may impose fines of up to 10 per cent of a firm's 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.125
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,126 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.127
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.128
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.129
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 of 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.130
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.131
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.132 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.133 However, when complex assessments carried out by the ICA remain questionable, the administrative court cannot substitute its own assessment for that of the ICA.134 The limits of judicial reviews of antitrust decisions were confirmed by Article 7(1) of Legislative Decree 3/2017.
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 ECHR.135
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.136
A collective action system was introduced to the Italian legal system in 2005.137 In April 2019, the Italian collective action system was reformed by Law No. 31 of 12 April 2019. The new rules entered into force on 19 November 2020,138 and only apply to practices carried out after this date.
The new regime significantly amended the collective action procedure, previously set forth by Article 140 bis of the Italian Consumer Code. All the provisions related to class actions have been moved from the Consumer Code to a newly created Section VIII bis of the Italian Code of Civil Procedure.139 As a result, the new class action is not limited to the protection of certain categories of consumer rights. The new rules enable, in general, individuals and non-profit organisations and associations (listed in a public registry held by the Italian Ministry of Justice) to bring class actions for the protection of homogeneous individual rights against firms and public utilities.140
According to the new procedural rules, the exclusive jurisdiction for class actions belongs to the specialised court divisions on corporate and business matters of the court competent for the territory where the defendant has its registered office. The procedure is regulated by a compulsory fast-track procedure, set forth by Article 702 bis of the Italian Code of Civil Procedure. The procedure consists of three different phases, namely: (1) the decision on the admissibility of the action; (2) the decision on the merits; and (3) the quantification of the damages and the distribution plan. Opt-in is possible at the end of both the first and the second stage of the procedure, within a certain time frame. Collective interim measures are also possible.
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.141
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,142 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.143
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 that are no longer subject to judicial review constitute legal proof of antitrust infringements.144 Nevertheless, a claimant still has to prove the other requirements for civil liability, including the causal link between the conduct and the damage.145 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.146
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.147 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.
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.148
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.149
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.
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 3/2017.
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 was confirmed by the recent Unilever and Poste cases on loyalty discounts and rebates,150 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 AECs, despite the principles established by the CJEU in the Intel judgment.151
A strong and penetrating judicial review by administrative courts is indispensable to increase the accuracy of antitrust analysis in abuse cases. Some recent cases confirm that administrative courts may play an important role in refining the economic analysis of alleged anticompetitive unilateral practices. In particular, in the recent CIN judgment, 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 AECs.152
Moreover, in December 2020, the Council of State referred the Unilever case to the CJEU for a preliminary ruling, to obtain some clarifications on the principles established by the Intel judgment.153 Among other things, the Council of State asked the CJEU: (1) whether the principles established in the Intel case (and, specifically, the AEC test) also apply to exclusivity provisions, or should be limited to rebates; and (2) whether national competition authorities must always analyse the economic studies submitted by the parties to prove that the conduct is not capable of excluding AECs, or whether this is unnecessary in the case of exclusivity obligations or complex anticompetitive strategies involving not only rebates, but also other anticompetitive practices.154 The ruling of the CJEU may have very important implications for the evolution of the decision practice on abuse of dominance.
More generally, a review of the judgments adopted by administrative courts in 2020 and the first months of 2021 shows that a significant percentage of ICA decisions were (partially or totally) annulled, signalling a low deferential attitude of the administrative judges towards the national competition authorities and, possibly, an intent to review their findings more extensively.
A stringent judicial review of antitrust decisions is necessary not only to ensure a more accurate economic analysis in abuse cases, 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.155 In this respect, unfortunately, Legislative Decree 3/2017, confirmed that the judicial review of antitrust decisions does not extend to complex assessments carried out by the ICA when these assessments are disputable. The entry into force of the binding effect of the ICA's findings of infringement in private damages actions, pursuant to Article 7 of Legislative Decree 3/2017, 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).
Many cases recently decided by the ICA and national courts have concerned highly regulated sectors. The interaction between competition law and sector-specific regulation continues to give rise to a significant 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,156 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 shown, for instance, by the Aspen case, concerning alleged excessive prices charged for certain pharmaceutical products.157 Another example of this intersection is provided by the Enel and Acea cases,158 in which 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.159 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 law160 – 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.161
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.162
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.163 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.164 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.
In line with the Commission's decision practice over recent years, the ICA is also increasingly focusing on high tech markets and, in particular, possible anticompetitive practices implemented by big tech companies. In this regard, in October 2020, the ICA opened a new investigation against Google for an alleged abuse of dominance in the Italian market for display advertising.165 This is the second investigation opened by the ICA against Google in less than two years. It seems reasonable to expect that the ICA's focus on the competitive concerns raised by large digital platforms will continue in the coming years.
As to the enforcement policy, the ICA has continued to adopt 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 some years ago, also due to some rulings by the administrative courts, which have constrained the ICA's discretion in commitment procedures. Between 2017 and 2020, the ICA issued commitment decisions in only seven (out of 24) cases. In its assessment, the ICA pays 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.166 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.
Finally, the coronavirus pandemic has inevitably had an impact on the enforcement of antitrust rules, including those on abuse of dominance. So far, there have been no consequences on the substantive assessment of abuse cases. However, taking into account the economic crisis that has affected many market sectors as a result of the pandemic and the restrictions imposed to limit the contagion, in some cases the ICA decided to significantly decrease the amount of fines levied on companies found responsible for abusive conduct167 or to postpone deadlines for the payment of fines (i.e., more than 90 days after notification of the infringement decision).168
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 25 February 2020, No. 28162, A514, Condotte Fibra Telecom Italia; 27 October 2020, No. 28430, A531, Riciclo imballaggi primari/Condotte abusive COREPLA; 22 December 2020, No. 28495, A523, Ticketone/Condotte escludenti nella vendita di biglietti.
7 Decision of 14 January 2020, No. 28082, A527, Comune di Genova/Distribuzione gas naturale.
8 Decisions of 17 March 2020, No. 28187, A523B, TicketOne/Condotte escludenti nella vendita di biglietti–Friends & Partners; 17 March 2020, No. 28188, A523C; TicketOne/Condotte escludenti nella vendita di biglietti–Vivo Concerti.
9 Decision of 23 February 2021, No. 28585, A540, Condotte abusive Italgas/ATEM Venezia 1.
10 TAR, 16 January 2020, No. 503.
11 TAR, 22 December 2020, Nos. 13886 and 13888.
12 Council of State, 13 January 2020, Nos. 310 and 315; Council of State, 3 March 2020, No. 1547.
13 Council of State, 13 March 2020, No. 1832.
14 Council of State, 2 February 2021, No. 1101.
15 Decision of 14 January 2020, No. 28082, A527, Comune di Genova/Distribuzione gas naturale.
16 Decision of 23 February 2021, No. 28585, A540, Condotte abusive Italgas/ATEM Venezia 1.
17 Decision of 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
18 Decisions of 17 March 2020, No. 28187, A523B, TicketOne/Condotte escludenti nella vendita di biglietti–Friends & Partners; and No. 28188, A523C; TicketOne/Condotte escludenti nella vendita di biglietti-Vivo Concerti.
19 Decision of 23 July 1993, No. 1314, I64B, Federazione Italiana Spedizionieri.
20 Decision of 27 October 2020, No. 28430, A531, Riciclo imballaggi primari/Condotte abusive COREPLA.
21 See Article 221 of the Consolidated Act on Environment (Legislative Decree No. 152 of 14 April 2006).
22 Decision of 22 December 2020, No. 28495, A523, TicketOne/Condotte escludenti nella vendita di biglietti.
23 Council of State, 13 January 2020, Nos. 310 and 315.
24 Decision of 25 January 2012, No. 23243, A435, Comune di Prato-Estra Reti Gas.
25 TAR, 1 August 2019, Nos. 9140 and 9141.
26 Case T-336/07, Telefónica and Telefónica de España v. Commission, ECLI:EU:T:2012:172, Sections 72–73.
27 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.
28 Case C-418/01, IMS Health, ECLI:EU:C:2004:257, Section 52.
29 Council of State, 3 March 2020, No. 1547; TAR, 7 June 2019, No. 7463.
30 Decision of 29 November 2018, No. 27434, A521, Attività di intermediazione della domanda di servizi taxi nel comune di Torino.
31 Following the Council of State's ruling, the ICA closed the proceedings initiated to investigate a possible infringement by Taxi Torino of the interim measures imposed in 2018 (see decision of 17 March 2020, No. 28185, A521B, Attività di intermediazione della domanda di servizi taxi nel comune di Torino-Inottemperanza).
32 Council of State, 13 March 2020, No. 1832; TAR, 26 July 2017, No. 8945.
33 Decision of 29 September 2016, No. 26185, A480, Incremento prezzo farmaci Aspen.
34 Case C-27/76, United Brands, ECLI:EU:C:1978:22.
35 Decision of 27 February 2014, No. 24819, A444, Akron.
36 TAR, 22 December 2020, Nos. 13886 and 13888.
37 Case C-413/14 P, Intel, ECLI:EU:C:2017:632, Sections 138–139, holding that 'in the case where the [dominant] undertaking submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects . . . the Commission is not only required to analyse, first, the extent of the undertaking's dominant position on the relevant market and, secondly, the share of the market covered by the challenged practice . . . it is also required to assess the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market'.
38 Council of State, 2 February 2021, No. 1101.
39 Decision of 25 July 2012, No. 23770, A436, Arenaways – Ostacoli all'accesso nel mercato dei servizi di trasporto ferroviario passeggeri.
40 Decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia.
41 Court of Rome, 26 February 2020, No. 4222; decision of 9 May 2013, No. 24339, A428, Wind-Fastweb/Condotte Telecom Italia.
42 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. [Moved from later in the chapter.]
43 Supreme Court, 27 February 2020, No. 5381; Court of Appeal of Milan, 20 July 2016, No. 3052.
44 Decision of 24 May 2007, No. 16871, A357, Tele 2/TIM-Vodafone-Wind.
45 Decision of 3 August 2007, No. 17131, A357, Tele 2/TIM-Vodafone-Wind.
46 Court of Milan, 3 April 2014, No. 4587.
47 Supreme Court, 27 February 2020, No. 5381; Court of Appeal of Milan, 20 July 2016, No. 3052.
48 Supreme Court, 3 April 2020, No. 7677.
49 Supreme Court, 3 April 2020, No. 7678; Court of Appeal of Milan, 2 January 2017, No. 1.
50 Decision of 3 August 2007, No. 17131, A357, Tele 2/TIM-Vodafone-Wind.
51 Court of Milan, 27 December 2013, No. 16319.
52 Court of Milan, Order of 4 January 2021.
53 Commission Decision of 27 June 2017, Case COMP/AT.39740, Google Search (Shopping).
54 On 11 September 2017, Google filed an application for annulment of the Commission decision with the General Court (OJ 2017, C 369/51).
55 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, to adequately assess possible competition concerns.
56 See, for example, decision of 28 June 2011, No. 22558, A415, Sapec Agro/Bayer-Helm; Council of State, 13 March 2020, No. 1832.
57 See, for example, decision of 17 December 1998, No. 6697, A209, Goriziane/Fiat Ferroviaria.
58 See, for example, decisions of 10 April 1992, No. 453, A13, Marinzulich/Tirrenia; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; and 14 June 2000, No. 8386, A274, Stream/Telepiù.
59 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.
60 See, for example, decision of 27 November 2003, No. 12634, A333, Enel Trade-Clienti Idonei.
61 See, for example, decision of 30 June 2010, No. 21297, A383, Mercato del cartongesso.
62 See, for example, decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
63 See, for instance, Council of State, 13 March 2020, No. 1832.
64 See decision of 3 August 2007, No. 17131, A357, Tele2/Tim-Vodafone-Wind.
65 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.
66 See, for example, Council of State, 19 July 2002, No. 4001; and 15 May 2015, No. 2479; TAR, 14 April 2008, No. 3163; and 31 May 2018, No. 6080; decision of 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia.
67 See, for example, Council of State, 15 May 2015, No. 2479; TAR, 30 August 2006, No. 7807; 20 October 2006, No. 10678; 31 May 2018, No. 6080; and 17 October 2019, Nos. 11954 and 11958.
68 See, for example, Council of State, 19 July 2002, No. 4001; TAR, 26 September 2019, No. 11330.
69 See, for example, decisions of 9 February 1995, No. 2793, A76, Tekal/Italcementi; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia; 27 October 2020, No. 28430, A531, Riciclo imballaggi primari/Condotte abusive COREPLA; 22 December 2020, No. 28495, A523, Ticketone/Condotte escludenti nella vendita di biglietti.
70 See Council of State, 12 February 2014, No. 693; 8 April 2014, No. 1673; TAR, 27 March 2014, No. 3398.
71 See, for example, decisions of 23 July 1993, No. 1312, A35, Cesare Fremura/Ferrovie dello Stato; 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento.
72 Decision of 9 February 1995, No. 2793, A76, Tekal/Italcementi.
73 Case C-62/86, Akzo v. Commission, ECLI:EU:C:1991:286.
74 Case C-333/94 P, Tetra Pak/Commission, ECLI:EU:C:1996:436.
75 Brook Group v. Brown & Williamson Tobacco, 509 US 940 (1993).
76 Decision of 17 April 2002, No. 10650, A267, Diano/Tourist Ferry Boat-Caronte Shipping-Navigazione Generale Italiana.
77 Decision of 24 October 2007, No. 17522, A372, Mercato del calcestruzzo cellulare autoclavato.
78 Decision of 14 December 2011, No. 23065, A413, TNT Post Italia/Poste Italiane.
79 TAR, 25 June 2012, No. 5769.
80 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.
81 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.
82 Decision of 12 November 2008, No. 19249, A375, Sfruttamento di informazioni commerciali privilegiate; Court of Appeal of Milan, 16 May 2006.
83 Decision of 27 March 2013, No. 24293, case A441, Applicazione dell'IVA sui servizi postali; TAR, 7 February 2014, No. 1525.
84 See, for example, decisions 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.
85 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.
86 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.
87 Decision of 28 June 2006, No. 15632, A362, Diritti calcistici.
88 See, for example, decisions of 25 July 2017, No. 26704, A499, Assicurazioni agricole/Comportamenti escludenti Codipra; 27 October 2020, No. 28430, A531, Riciclo imballaggi primari/Condotte abusive COREPLA.
89 See decisions 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); 22 December 2020, No. 28495, A523, Ticketone/Condotte escludenti nella vendita di biglietti.
90 See, for example, decisions of 10 April 1992, No. 453, A13, Marinzulich/Tirrenia; 19 October 1994, No. 2379, A49, Pozzuoli Ferries/Gruppo Lauro; 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 27 June 2001, No. 9693, A291, Assoviaggi/Alitalia; 27 November 2003, No. 12634, A333, Enel Trade-Clienti Idonei; 16 November 2004, No. 13752, A351, Comportamenti abusivi di Telecom Italia; 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.
91 See, in particular, decisions of 7 December 1999, No. 7804, A224, Pepsico Foods and Beverages International-IBG Sud/Coca-Cola Italia; 27 June 2001, No. 9693, A291, Assoviaggi/Alitalia.
92 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.
93 Case C-413/14 P, Intel, ECLI:EU:C:2017:632.
94 TAR, 4 June 2019, No. 7175.
95 Decision of 29 May 1997, No. 5034, A156, Albacom Servizio Executive. See also decisions of 10 April 1992, No. 453, A13, Marinzulich/Tirrenia; 20 September 2000, No. 8692, A247, Aeroporti di Roma-Tariffe del Groundhandling; 25 July 2017, No. 26704, A499, Assicurazioni agricole/Comportamenti escludenti Codipra.
96 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.
97 See, for example, decision of 14 March 2018, No. 27089, A507, Servizio rifornimento carburante avio.
98 Decision of 27 October 2020, No. 28430, A531, Riciclo imballaggi primari/Condotte abusive COREPLA.
99 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.
100 See decision of 25 July 2012, No. 23770, A436, Arenaways-Ostacoli all'accesso nel mercato dei servizi di trasporto ferroviario passeggeri. The decision was first 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; later on, it was partially upheld by the Council of State, 2 February 2021, No. 1101, which confirmed the ICA's findings concerning the unduly dilatory tactics. 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.
101 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.
103 See, for example, decision of 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento.
104 See, for example, TAR, 3 March 2006, No. 341; Court of Milan, 4 June 2013, No. 7825; decisions of 15 June 2005, No. 14388, A364, Merck-Principi attivi; 8 February 2006, No. 15175, Glaxo-Principi attivi; 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.
105 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/Otacoli all'accesso nel mercato dei servizi di trasporto ferroviario passeggeri ad alta velocità; 22 March 2017, No. 26497, A489, Nuovo Imaie-Condotte anticoncorrenziali.
106 See, for example, decision of 15 June 2005, No. 14388, A364, Merck-Principi attivi; TAR, 3 March 2006, No. 341.
107 TAR, 16 January 2020, No. 503.
108 See, for example, decision of 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma.
109 However, the ICA has normally rejected the defence in the light of the specific facts of the case: see, for example, decisions of 2 March 1995, No. 2854, A61, De Montis Catering Roma/Aeroporti di Roma; 6 June 1996, No. 3953, A107, Fina Italiana/Compagnia Italpetroli; 25 February 1999, No. 6926, A221, Snam-Tariffe di Vettoriamento.
110 Decision of 15 February 2006, No. 15174, A358, Eni-Trans Tunisian Pipeline.
111 Commission decision of 29 September 2010, Case COMP/39.315, ENI.
112 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 10 April 1992, No. 452, A4, Ancic/Cerved; 17 March 1993, No. 1017, A11, IBAR/Aeroporti Roma.
113 Court of Appeal of Milan, 7 November 2017.
114 See, for example, decisions of 27 February 2014, No. 24819, A444, Akron-Gestione rifiuti urbani a base cellulosica, subsequently annulled by TAR, 22 December 2020, Nos. 13886 and 13888; 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.
115 See, for example, decisions of 24 February 2000, No. 8065, A227, Cesare Fremura-Assologistica/Ferrovie dello Stato; 27 April 2001, No. 9472, A285, Infostrada/Telecom Italia-Tecnologia ADSL; 29 March 2006, No. 15310, A365, Posta elettronica ibrida; 3 August 2007, No. 17131, A357, Tele2/Tim-Vodafone-Wind.
116 See, for example, decisions of 11 November 1996, No. 4398, A102, Associazione Consumatori Utenti/Alitalia; 27 April 2001, No. 9472, A285, Infostrada/Telecom Italia-Tecnologia ADSL; 29 March 2006, No. 15310, A365, Posta elettronica ibrida.
117 See, for example, decision of 28 February 2018, No. 27503, A487, Compagnia Italiana di Navigazione – Trasporto marittimo delle merci da/per la Sardegna.
118 See, for example, decisions of 16 March 1994, No. 1845, A56, IBAR/SEA; 23 October 2008, No. 19020, A376, Aeroporti di Roma-Tariffe aeroportuali; 26 November 2008, No. 19189, A377, Sea-Tariffe aeroportuali; 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci.
119 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.
120 See, for example, decision of 4 May 2017, No. 26562, A498A, Enel – Prezzi servizi di dispacciamento area Brindisi.
121 See, for example, decisions of 10 April 1992, No. 452, A4, Ancic/Cerved; 15 November 2001, No. 10115, A306, Alitalia/Veraldi.
122 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.
123 See, for example, decision of 23 May 2002, No. 10763, A299, International mail express/Poste Italiane.
124 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).
125 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.
126 See, for example, decision of 22 December 2020, No. 28495, A523, Ticketone/Condotte escludenti nella vendita di biglietti, where the ICA ordered the TicketOne Group and the promoters to allow other ticketing operators to sell, by any means and through any channel, under fair and non-discriminatory terms, at least 20 per cent of the tickets for events produced or distributed by the promoters or by ticketing operators tied to the TicketOne Group by exclusivity clauses.
127 See, for example, decision of 23 June 2020, No. 28277, A536, Regione Toscana/Gara per l'affidamento del servizio di trasporto pubblico locale. See also 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 decision, 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 only when its theory of harm is absolutely clear, as these measures may permanently shape competitive dynamics in the relevant market.
128 See, in particular, TAR, 27 February 2007, No. 1745; 15 January 2007, No. 203.
129 Decisions of 23 July 1993, No. 1314, I64B, Federazione Italiana Spedizionieri; 17 March 2020, No. 28187, A523B, TicketOne/Condotte escludenti nella vendita di biglietti–Friends & Partners; 17 March 2020, No. 28188, A523C; TicketOne/Condotte escludenti nella vendita di biglietti-Vivo Concerti.
130 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.
131 See Council of State, 2 March 2009, No. 1190.
132 See Council of State, 19 July 2002, No. 4001; and TAR, 10 March 2003, No. 1790.
133 See, for example, Council of State, 8 February 2007, No. 515; 20 February 2008, No. 597; 6 May 2014, No. 2302. See also Council of State, 13 January 2020, Nos. 310 and 315.
134 See, for example, Council of State, 24 September 2012, No. 5067; 6 May 2014, No. 2302.
135 ECHR, Case No. 43509/08, A Menarini Diagnostics v. Italy.
136 Supreme Court, 4 February 2005, No. 2207.
137 See former Article 140 bis of Legislative Decree No. 206/2005 (the Italian Consumer Code).
138 See Law No. 31 of 12 April 2019; and Article 8(5) of Law Decree No. 162 of 30 December 2019, converted into Law No. 8 of 28 February 2020.
139 Article 840 bis to 840 sexiesdecies.
140 In particular, pursuant to Article 840 bis(1) of the Italian Code of Civil Procedure, class actions are defined as a procedural tool for the protection of all 'individual homogeneous rights' that have been violated by acts or misconduct of companies, public services operators and public utilities operators, in the exercise of their respective activities.
141 Court of Appeal of Naples, 28 June 2007, No. 2513.
142 Court of Appeal of Milan, 18 July 1995 and 24 December 1996.
143 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.
144 Based on the principles established by Italian case law, ICA 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; 18 December 2019, No. 11772; Court of Rome, 26 February 2020, No. 4222.
145 Supreme Court, 3 April 2020, No. 7678.
146 Supreme Court, 27 February 2020, No. 5381. See also Court of Milan, 28 July 2015, No. 9109; 30 May 2019, No. 5122.
147 Supreme Court, 4 June 2015, No. 11564. See also Supreme Court, 1 April 2016, No. 6366; 12 November 2019, Nos. 29237 and 29238.
148 See Court of Rome, 26 February 2020, No. 4222.
149 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, for example, 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 the 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 and 3 April 2020, No. 7677), or the publication of the ICA's final decision (see, e.g., Court of Rome, 26 February 2020, No. 4222).
150 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.
151 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, Nos. 11954 and 11958, in which the TAR reiterated the view by which, in analysing an alleged abuse, 'object and effect tend to be indistinguishable'.
152 TAR, 4 June 2019, No. 7175.
153 Council of State, order of 7 December 2020, No. 7713.
154 See Case C-680/20.
155 Judgment of 27 September 2011, A Menarini Diagnostics SRL v. Italy, application No. 43509/08.
156 Council of State, 13 November 2018, No. 6355.
157 Decision of 29 September 2016, No. 26185, A480, Aspen-Incremento prezzi farmaci, upheld by Council of State, 13 March 2020, No. 1832.
158 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.
159 In July 2020, the Council of State decided to stay the pending appeal proceedings concerning the ICA's decision in the Enel case and referred a number of preliminary questions to the CJEU (order of 20 July 2020, No. 4646). Inter alia, the Council of State asked the CJEU to clarify whether: (1) a given conduct, which is completely lawful in and of itself, may be classified as an abuse solely because of its (potentially) restrictive effects, or if it must also be characterised by a specific unlawful component, represented by the use of competitive methods (or means) different from normal ones; and (2) an abuse of dominant position must be assessed solely on the basis of its actual or potential effects on the market, or if evidence of anticompetitive intent may also be used (even exclusively) to assess the abusive nature of the contested conduct (see Case C-377-20).
160 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.
161 Council of State, 12 February 2014, No. 693.
162 Decision of 25 March 2015, No. 25397, A474, SEA/Convenzione ATA; TAR, 23 January 2017, No. 1188.
163 See, for example, decision of 3 September 2015, No. 25035, A476, Conai-Gestione rifiuti da imballaggi in plastica.
164 Decision of 25 February 2020, No. 28162, A514, Condotte fibra Telecom Italia.
165 Decision of 20 October 2020, No. 28398, A542, Google nel mercato italiano del display advertising.
166 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.
167 Decision of 22 December 2020, No. 28495, A523, TicketOne/Condotte escludenti nella vendita di biglietti, where the fine was reduced by 70 per cent as a result of the pandemic and the serious economic crisis affecting the relevant live music industry.
168 Decisions of 17 March 2020, No. 28187, A523B, TicketOne/Condotte escludenti nella vendita di biglietti–Friends & Partners; 17 March 2020, No. 28188, A523C; TicketOne/Condotte escludenti nella vendita di biglietti–Vivo Concerti.