On February 26, 2020, the Court of Rome issued a non-final judgment in an action for damages brought by Siportal S.r.l. (“Siportal”) 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 found and fined by ICA in 2013. The Court rejected TIM’s claim that the limitation period had expired, found that TIM had committed an abuse against Siportal, and asked the ICA to assist the Court with respect to the determination of the quantum of damages pursuant to Article 14(3) of Legislative Decree No. 3/2017.
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 allegedly 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, on the hand, and TIM’s commercial divisions, on the other, 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, Siportal 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 division, which caused significant damages, with effects even after 2011. Siportal therefore asked the Court of Rome to award damages amounting to around €48 million.
The Court asked for an expert opinion to quantify the damages allegedly suffered by Siportal. In his report, the expert held that TIM’s conduct had harmed Siportal and the damages amounted to around €3 million.
The Court of Rome stated that the A428 Decision did not have full evidentiary value against TIM under Article 7 of Legislative Decree No. 3/2017, as this provision cannot apply retroactively to decisions adopted before its entry into force. Nonetheless, the Court held that, based on prior case-law, ICA’s decisions constitute “privileged evidence” of the existence, nature and scope of the infringement concerned. In addition, in the Court’s view, the available evidence confirmed that Siportal had been harmed by the alleged abuse. Therefore, the Court concluded that “the existence of the damage alleged by Siportal must be considered causally linked with the anticompetitive conduct of Telecom in the three-year period 2009-2011.”
The Court of Rome also rejected TIM’s objection that the limitation period had expired. According to TIM, the limitation period had started running when the KOs were communicated to the OAO. The Court did not agree with this interpretation. In the Court’s view, TIM’s infringement consisted in the opposition of excessively high percentages of KOs, which were higher than the percentages of KOs communicated to TIM’s commercial divisions. According to the Court, Siportal could not have known that the percentages of KOs it had suffered were higher than those of TIM’s internal divisions until the ICA published the A428 Decision. Accordingly, the limitation period had started running only from the publication of the
The Court of Rome does not seem to have paid much attention to the fact that Siportal was a “professional operator”, active in the same markets of the incumbent, nor to the fact that the plaintiff had participated in the ICA’s proceedings.
Lastly, the Court of Rome ruled that the independent technical expert’s opinion on the quantification of damages was not reliable because it had not identified an appropriate temporal and geographical counterfactual scenario to estimate the percentage of KOs that could be considered excessive. The expert had actually assumed that all KOs were not justified, 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 of Legislative Decree No. 3/2017, the Court asked the ICA to provide its guidance on the appropriate benchmarks to estimate the alleged antitrust damages.
 Court of Rome, Judgment No. 4222 of February 26, 2020.
 Which implements Article 17(3) of Directive 2014/104/EU.
 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).
 According to which “[t]he judge may seek assistance from the competition authority by making specific requests on guidelines concerning the quantification of damages. Unless the assistance is inappropriate in relation to the need to safeguard the effectiveness of public enforcement of competition law, the competition authority shall provide the assistance requested in the form and manner indicated by the court after consulting the competition authority.”