On December 23, 2019, the Council of State upheld the appeals brought by TIM and a number of firms active in the provision of corrective maintenance services for its electronic communications networks (the “Maintenance Firms”)against the judgments of the TAR Lazio that had confirmed the ICA’s decision finding an anticompetitive agreement in the market for the above-mentioned services.[1]

Pursuant to Article 47(2-quater) of Law Decree No. 5 of February 9, 2012, alternative telecommunications operators can acquire maintenance services directly from the firms active on this market, without TIM’s intermediation. After the entry into force of the above-mentioned provision, Wind S.p.A. reported to the ICA and the Italian Communications Authority certain anomalies in the offerings presented by the Maintenance Firms, which were allegedly due to an anticompetitive agreement.

The ICA held that the Maintenance Firms had put in place, thanks to TIM’s coordination efforts, a ‘by object’ anticompetitive agreement aimed at hindering competition in the relevant market.[2] In particular, the alleged anticompetitive agreement took place through: (i) the exchange of information concerning corrective maintenance services aimed at coordinating prices and other aspects of the offerings (such as quality levels and possibility of subcontracting); and (ii) the coordination of the parties’ conduct in the hearings before the Italian Communications Authority, which were held to oversee the market. On appeal, the TAR Lazio fully upheld the ICA’s decision.[3]

On subsequent appeals filed by the Maintenance Firms and TIM, the Council of State overturned the TAR Lazio’s judgments. First, according to the Council of State, the ICA erred in considering that, at the time of the ICA’s decision, there was a liberalized market for maintenance services for TIM’s electronic communications network. Indeed, Article 47(2-quater) of Law Decree No. 5 of February 9, 2012, which aimed at making the relevant market competitive, still needed to be implemented by a regulation of the Italian Communications Authority and, until that time, alternative telecommunications operators had to rely on TIM’s intermediation for the provision of maintenance services. Therefore, the Council of State concluded that the very assumption on which the ICA initiated the proceedings was incorrect. Second, in line with European case law (namely, the Groupement des Cartes Bancaires judgment),[4] the Council of State held that the notion of ‘by object’ anticompetitive agreement had to be construed restrictively. In this case, also in the light of the particular features of the market concerned, the ICA should have proven the existence and magnitude of the anticompetitive effects of the contested conduct.

As a result, the Council of State stated that the ICA must re-assess the contested conduct in light of the principles established by its judgment. Following the re-assessment of the conduct, the ICA could close the proceedings without finding any infringement, or confirm its finding of infringement and, possibly, reduce the amount of the fines.

[1]              Council of State, Judgment No. 8695/2019.

[2]              ICA Decision of December 16, 2015, No. 25784, Case I761, Mercato dei servizi tecnici accessori.

[3]              TAR Lazio, Judgments Nos. 9553, 9554, 9555, 9556, 9559, 9560, 9561/2016.

[4]              Groupement des Cartes Bancaires, C-67/13 P, ECLI:EU:C:2014:2204.