Abstract
This chapter provides a general survey of the antitrust public enforcement in Italy during recent years. It emerges that efforts have been put to ascertain abuses that have been very rarely scrutinised in the past, such as abuses of dominant position through excessive prices. Moreover strict antitrust enforcement was necessary to avoid the possibility that cartels would undermine the positive implications of the more centralised approach in public purchasing which Italy has adopted. Alongside these lines of antitrust intervention, the Italian Competition Authority has often used its advocacy powers to ensure the role of competition in promoting dynamic markets and economic growth especially in the fields of the new digital and sharing economy.
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Notes
- 1.
Taking into account the period between January 2016 to April 2017, 13 cases of anticompetitive agreements and 9 cases of abuse of dominance have been scrutinised. The mergers reviewed by the ICA were 73. Considering the outcomes of the appeals of the ICA’s decisions before the administrative Courts, the sanctions imposed in 2016 for anticompetitive conducts amount to € 112,296,064.73.
- 2.
It is important to underline that in September 2017 the Court of Justice of the European Union clarified a number of extremely relevant issues regarding excessive pricing (Case C-177/16 Biedrība “Autortiesību un komunicēšanās konsultāciju aģentūra - Latvijas Autoru apvienība” Konkurences padome [2017] ECLI:EU:C:2017:689). More recently is it interesting to have a look at the conclusions which were drawn on these issues at the Rome Antitrust Forum. See Sokol (2018).
- 3.
- 4.
The ICA did not establish which was exactly the price that Aspen could have requested to AIFA.
- 5.
The ICA recently opened a proceeding in order to verify whether Aspen is complying with this decision. ICA Case A480B, Decision No 26432, 1 March 2017.
- 6.
The Italian Code of Administrative Procedure (Legislative Decree 2 July 2010, No 104) reserves exclusive jurisdiction on the decisions issued by the Italian Competition Authority to administrative courts, and concentrates all litigation at the first instance into the functional competence of the TAR Lazio (Articles 133 and 135 of the Code of Administrative Procedure). The judgments issued by the TAR Lazio can be further appealed before the Consiglio di Stato (Council of State) acting as a Court of last instance.
- 7.
In the USA, where the Supreme Court has not generally endorsed excessive pricing doctrine, several scholars have recently argued that there is no reason in principle why in “Aspen-like cases” the Sherman Act should not address excessive pricing “as such”. See Abbott (2016), p. 289.
- 8.
Terna is the national electricity grid operator.
- 9.
ICA Case A498A, Decision No 26562, 4 May 2017.
- 10.
That is much lower than the amount that the current criteria for the quantification of the plant’s costs would have produced.
- 11.
In addition, and more generally, through further commitments regarding its conducts as to offers on the wholesale market, Enel has considerably limited the possibility that Terna should be required to purchase dispatching services, possibly at high prices, even from other operators in the Brindisi area, such as Sorgenia, whose investigation was closed at the same time, having established that there were insufficient legal grounds to proceed against them.
- 12.
ICA case I785, Decision No 25802, 22 October 2015. The fines which were originally imposed amounted to more than 110 million of euro. In its decision dated 26 January 2017, the Italian Council of State confirmed the ICA’s decision to fine such cartel. However the Council of State also confirmed the Lazio TAR’s decision that the fines to the members of the cartel should have been lowered.
- 13.
ICA Case I796, Decision No 26816, 18 October 2017.
- 14.
ICA Case I808, Decision No 26454, 21 March 2017 and Decision No 26868, 22 November 2017.
- 15.
ICA Case I806, Decision No 26445, 14 March 2017 and Decision No 26688, 19 July 2017.
- 16.
Article 80(5)(c) of Legislative Decree No 50, 18 April 2016 (so-called Italian Public Procurement Code) and point No 2.2.3.1 of the Italian Anti-Corruption Authority Guidelines No 6, as recently modified by the Italian Anti-Corruption Authority Decision No 1008/2017.
- 17.
Commission Decision SA.41647 Italy—Strategia Banda Ultra Larga (OJ C 256, 15.7.2016, p. 1).
- 18.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: a European agenda for the collaborative economy (COM(2016) 356 final). Available at eur-lex. https://eur-lex.europa.eu/legal-content/IT/TXT/?qid=1523874166793&uri=CELEX:52016DC0356. Accessed 16 Apr 2018.
- 19.
ICA Case AS1222, 29 September 2015.
- 20.
The Case C-434/15 Asociación Profesional Elite Taxi [2017] ECLI:EU:C:2017:981 clarified that an intermediation service such as that at issue, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as ‘a service in the field of transport’ within the meaning of EU Law. Consequently, such a service must be excluded from the scope of the freedom to provide services in general as well as the Directive on services in the internal market and the Directive on electronic commerce. It follows that, as EU Law currently stands, it is for the Member States to regulate the conditions under which such services are to be provided in conformity with the general rules of the TFEU.
- 21.
ICA Opinion S2782, 10 March 2017 available at AGCM. http://www.agcm.it/component/joomdoc/allegati-news/S2782Segnalazione.pdf/download.html. Accessed 20 Feb 2018.
- 22.
According to these clauses the supplier of accommodation facilities undertakes to guarantee the best price conditions to the intermediary concerned as compared with any other dealer.
- 23.
Available via European Commission. http://ec.europa.eu/competition/ecn/hotel_monitoring_report_en.pdf. Accessed 20 Feb 2018.
- 24.
In August 2017, following the ban of parity clauses from online booking platforms in Germany, France and Austria, also Italy altogether prohibited such clauses in contracts with hotel partners. The new passage in Article 1, para. 166 of Law No 124, 4 August 2017, reads as follows: “any agreement by which the hotel is obliged not to offer to the final clients, by any means or any instruments, prices, terms and any other conditions better than those offered by the same hotel through intermediaries, regardless of the law applicable to the contract, is void”.
- 25.
On 30 September 2015 the Lazio Region modified the afore-said Regulation; in particular, pursuant to such modification, the provisions concerning closure periods will not be applied before 2017.
- 26.
See TAR Lazio, 13 June 2016, Decision No 6755/2016.
References
Abbott F (2016) Excessive pharmaceutical prices and competition law: doctrinal development to protect public health. UC Irvine Law Rev 6:289–295
OECD (2012) Excessive prices. http://www.oecd.org/competition/abuse/49604207.pdf. Accessed 27 Feb 2018
Pitruzzella G, Muscolo G (eds) (2016) Competition and Patent Law in the pharmaceutical sector, an international perspective. Wolters Kluwer, The Netherlands
Sokol D (2018) Rome Antitrust Forum - Summary of the fourth annual meeting. http://lawprofessors.typepad.com/antitrustprof_blog. Accessed 15 Feb 2018
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Caprile, P. (2018). An Overview of the Recent Application of EU and National Competition Law by the Italian Competition Authority. In: Marino, S., Biel, Ł., Bajčić, M., Sosoni, V. (eds) Language and Law. Springer, Cham. https://doi.org/10.1007/978-3-319-90905-9_3
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