On March 3, 2020, the TAR Lazio rejected the appeal brought by Open Fiber S.p.A. (“Open Fiber”, an operator active in the development of optical fiber networks based on the Fiber to the Home technology) for the annulment of the commitment decision adopted by the ICA in proceedings against Telecom Italia S.p.A. (“TIM”) and Fastweb S.p.A. (“Fastweb”), concerning the markets for wholesale access to the fixed network and fixed broadband and ultra- wideband retail telecommunications services.[1]

In February 2017, the ICA opened proceedings against TIM and Fastweb for possible restrictions of competition caused by the co-investment agreement for the rollout of Fiber to the Home technology in a number of cities across Italy, through the joint venture Flash Fiber S.r.l. To address the ICA’s concerns, TIM and Fastweb submitted a set of remedies pursuant to Article 14-ter of Law No. 287/1990. In March 2018, the ICA accepted and made binding the commitments offered by the parties.

The TAR Lazio dismissed Open Fiber’s appeal. Contrary to the applicant’s claims, the court found that the ICA commitment decision was sufficiently reasoned and lacked manifest errors. From a procedural standpoint, in line with its precedents, the Court clarified that the 90-day term for the submission of a commitments proposal under Article 14-ter of Law No. 287/1990 is not mandatory.

[1]              TAR Lazio, Judgment No. 2760 of March 3, 2020.