On January 16, 2020, the TAR Lazio[1] accepted the application filed by Società Iniziative Editoriali S.p.A. (hereinafter “SIE”), a company active in the daily newspaper market and publisher of the main daily newspaper in the area of Trento (L’Adige), for annulment of an ICA decision finding SIE to have abused its dominant position on the said market by refusing to license the editorial contents of its newspaper to companies providing daily press reviews in the area of Trento. The ICA’s investigation originated from a complaint by Euregio S.r.l. GmbH (“Euregio”), a company active in the downstream local market for daily media monitoring services, which provided customers with a customized press review of selected news. In the course of the proceedings, the ICA adopted two interim measures, first by ordering SIE to issue the requested licenses on fair, reasonable and non-discriminatory (“FRAND”) conditions to any operator requesting the use of the contents of L’Adige, and subsequently (due to SIE’s and Euregio’s failure to reach an agreement) establishing those conditions.[2] At the end of the investigation, the ICA imposed on SIE a fine of approximately €1,000 for abusing its dominant position, and ordered it to grant on FRAND terms, to any operator requesting it, a license of the right to use the contents of its newspaper.[3]

The TAR Lazio, after restating the well-established essential facilities doctrine (“EFD”) – by which a refusal to grant a license of intellectual property rights (“IPRs”) may be deemed abusive only where certain cumulative conditions are met –[4] held that the ICA did not adequately establish the first two conditions, i.e., the essential nature of the input and the innovative nature of the new product. In relation to the first condition, the ICA analyzed only the “special usefulness” of the contents of L’Adige for the production of a local press review, without verifying the absolute indispensability and non-duplicability of the input, as required under the EFD. Furthermore, the ICA failed to assess whether Euregio’s press review was innovative, since it did not clarify to what extent such product would have been groundbreaking compared to other similar products already available on the market.

[1]              TAR Lazio, Judgment No. 503/2020.

[2]              ICA Decision of February 7, 2017, No. 26412; and ICA Decision of March 22, 2017, No. 26498.

[3]              ICA Decision of December 12, 2017, No. 26907, Case A503 – Società iniziative editoriali/Servizi di rassegna stampa nella provincia di Trento.

[4]              Namely: (i) the dominant company’s refusal must relate to a product or service that is objectively necessary for the requesting company to be able to compete effectively on a downstream market; (ii) the refusal must prevent the entry on the market of a new product or service not offered by the owner of the IPRs and for which there is a potential consumer demand; (iii) the refusal is not justified by objective justifications; and (iv) the refusal is such as to eliminate all competition on the downstream market (see IMS Health – Case C-418/01, EU:C:2004:257, §52).