On May 17, 2021, the Regional Administrative Tribunal of Lazio (“TAR Lazio”) rejected the application for annulment lodged by SAD – Trasporto Locale S.p.A. (“SAD”), a company entrusted by the Autonomous Province of Bolzano (“APB”) with the provision of road passenger transport services in the Bolzano area, against the 2019 decision by which the Italian Competition Authority (“ICA”) fined SAD for abuse of dominance under Article 102 TFEU.
The APB entrusted SAD with the provision of public passenger land transport services in relation to certain suburban lines in the Bolzano area since the 1960s.
As the relevant concession agreement was due to expire in 2018, in 2017 the APB decided to reorganize the local public transport services and award new concession agreements though a public tender procedure.
In January 2018, the APB complained to the ICA that SAD had unlawfully refused to provide information that was essential in order to carry out the public tender procedure (e.g., information on the number of buses and logistic facilities used by SAD, and information on personnel other than drivers). In particular, the APB maintained that the alleged refusal resulted in an information asymmetry such that the bidders other than SAD were placed at a competitive disadvantage vis-a- vis the incumbent.
The ICA took action in relation to APB’s complaint and, after rejecting the commitments submitted by SAD, it concluded that SAD was dominant on account if its legal monopoly, and that its refusal to disclose essential information amounted to an abuse of dominance. The ICA imposed a €1.1 million fine on SAD.
The judgment of the TAR Lazio
In its application before the TAR Lazio, SAD argued that the ICA had erred: (i) in defining the relevant market (and finding that SAD held a dominant position); (ii) in establishing that its conduct was abusive; and (iii) in characterizing the infringement found as serious.
First, in relation to the market definition, SAD argued that the ICA should not have considered the market for the provision of suburban road passenger transport services in the Bolzano area as the relevant market in which SAD held a legal monopoly, because the APB was about to disrupt such monopoly by means of a public tender procedure.
The TAR Lazio, however, confirmed that the ICA was right in defining the relevant market by taking into account its features at the time of the conduct (i.e., the fact that the public tender procedure had not yet taken place when SAD refused to provide the APB with the information requested).
Secondly, in relation to the finding of an abuse of dominance, SAD argued that the conduct at issue did not cause any harm, whereas the alleged delay in providing the information was in fact due to APB’s delay in launching the consultation for the tender.
The TAR Lazio was not convinced by these arguments, and noted that: (i) by refusing to disclose information that was essential in the context of the tender procedure, SAD hindered the entry of competitors into the market; and (ii) SAD’s conduct lacked any objective justification.
Third, the TAR Lazio confirmed that the infringement was serious, considering that SAD’s conduct effectively delayed the publication of the call for tenders by approximately four months.
 TAR Lazio, Judgment No. 5801/2021.
 ICA Decision of April 10, 2019, No. 27635, Case A516, Gara affidamento servizi TPL Bolzano.