On December 18, 2019, the Court of Milan rejected an action for damages brought by Enter S.r.l. (“Enter”) against Telecom Italia S.p.A. (“TIM”) in follow-on litigation for an alleged abuse of dominance in the provision of wholesale access services, which had been established and fined by the Italian Competition Authority (the “ICA”) in 2013.
In order to provide electronic communications services to final customers, the other authorized operators (“OAOs”) normally need access to TIM’s fixed network. When the OAOs acquire new customers, they send TIM a request to activate the wholesale access services needed to provide users with retail electronic communications services. This process can either have a positive outcome, leading to the provision of the retail service to final customers, or a negative outcome, when TIM communicates the presence of one of the circumstances provided for by sector-specific regulation, which prevent the activation of wholesale access services.
In a decision delivered on May 9, 2013, in the A428 case (the “A428 Decision”), the ICA stated that, in the period 2009-2011, TIM had abused its dominant position by communicating an unjustifiably high number of refusals to activate wholesale access services (KOs), in order to hinder the expansion of competitors in the markets for voice telephony services and broadband internet access. 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. In the ICA’s view, the differences between external and internal procedures were not as such unlawful, but they had resulted, de facto, in higher percentages of KOs for competitors compared to TIM’s commercial divisions.
In the civil proceedings, Enter claimed that it had been harmed by the above-mentioned conduct. The claimant argued that, in the period 2009- 2011, it had received percentages of refusals to activate higher than those received by TIM’s retail divisions. Enter also claimed that there was a causal link between the contested conduct and the damage allegedly suffered, taking into account the competitive relationship between TIM and Enter, the alleged exclusionary effects of the contested conduct and the high number of refusals to activate allegedly received by the plaintiff. Enter therefore asked the Court of Milan to award damages amounting to around €1.9 million. TIM asserted that the statistical analysis demonstrated the absence of discriminatory treatment, as Enter had actually gained, in percentage terms, a number of customers higher than the clients gained by TIM’s internal commercial divisions. TIM also contested that Enter had not alleged and proved any unjustified refusals to activate. In addition, there was no evidence of the damage allegedly suffered and a causal link between such damage and the contested conduct.
In its Judgment No. 11772 of December 18, 2019, the Court of Milan rejected Enter’s request and ordered it to reimburse the costs of the proceedings.
The Court of Milan first considered the evidentiary value of the ICA’s decision. The Court noted that Article 7 of Legislative Decree No. 3 of 2017, according to which final decisions by a competition authority have full evidentiary value against the infringer in relation to the nature and scope of the infringement, could not be applied retroactively to this case. The claimant could rely on settled case law according to which the decisions of the ICA constitute “privileged evidence” of the nature and scope of the infringement. However, the claimant bears the burden of proving, inter alia, that: (i) it was actually affected by the contested conduct; (ii) it suffered damages; and (iii) there was a causal link between the conduct and the alleged damage, on the basis of ordinary rules on burden of proof, with some adjustments to take into account the particular nature of private antitrust enforcement.
The Court of Milan then assessed whether the facts alleged and the evidence submitted by Enter satisfied the legal standard. In the Court’s view, the claimant had not adequately established that it was actually harmed by the conduct fined by the A428 Decision and there was a causal link between such conduct and the alleged harm. In particular, the Court found that, in civil proceedings, the statistical analysis of the percentage incidence of the refusals to activate communicated to Enter – which in any case did not provide clear indications of discriminatory treatment – was not sufficient to demonstrate the alleged wrongdoing, as it could only constitute circumstantial evidence or reinforce and confirm further evidence. The available evidence showed that Enter regularly checked whether the refusals to activate communicated by TIM were actually justified by the circumstances provided for by sector-specific regulation. As the claimant had not specified which refusals to activate were in its view unlawful or unjustified, the Court held that it was not necessary to appoint an expert (CTU) to carry out further investigations in that regard.
The proceedings before the Court of Milan are part of a series of follow-on actions based on the A428 Decision. The findings of the Court in this case could have important implications for the other ongoing cases based on the A428 Decision as well as, more generally, for the assessment of antitrust damages claims in follow-on actions.
 Court of Milan, Judgment No. 11772 of December 18, 2019.
 ICA Decision of May 9, 2013, No. 24339, Case A428, Wind-Fastweb/Condotte Telecom Italia. The decision was subsequently upheld by the TAR Lazio (Judgment No. 4801/2014) and the Council of State (Judgment No. 2479/2015).