In a decision issued on September 21, 2021,[1] the ICA fined Yellow Tax Multiservice S.r.l. (“Yellow Tax”) for non-compliance with a previous decision finding an infringement of Article 101 TFEU.

Background

On June 27, 2018, the ICA found that the major companies managing radio taxi services in Milan (Taxiblu Consorzio Radiotaxi Satellitare Società Cooperativa, Yellow Tax and Autoradiotassì Società Cooperativa, jointly “the Parties”) had infringed Article 101 TFEU by imposing on the taxi drivers affiliated to their networks certain exclusivity and non-compete obligations, provided for by the Parties’ by-laws or in the contracts entered into with the drivers (the “Decision”).[2]

In particular, according to the Decision, the clauses at issue forced each affiliated taxi driver to allocate all of his or her capacity solely to one radio taxi company. Such provisions resulted in a parallel network of anticompetitive vertical agreements, having a cumulative foreclosure effect on the complainant Mytaxi, the new entrant in the market for taxi demand management services, which operated a mobile app aimed at connecting taxi drivers and consumers.

The ICA concluded that the alleged anticompetitive conduct did not amount to a “serious” infringement of competition law and, thus, did not impose any fine on the Parties. However, the ICA ordered them: (i) to adopt, within 120 days from the notification of the Decision, appropriate measures to eliminate the infringement and to refrain from similar conduct in the future; and (ii) to submit, within the same deadline, a written report on the measures adopted in this regard.

In 2019, the TAR Lazio annulled the Decision on appeal, on the grounds of insufficient reasoning and inadequate demonstration of the causal link between the exclusivity clauses and Mytaxi’s inability to operate based on its different business model.[3]

However, in June 2020, the Council of State overturned the TAR Lazio’s judgments.[4] In particular, the Council of State found that the ICA had properly analyzed all the elements required to establish the existence of an anticompetitive agreement. It also held that the ICA had substantiated its findings with a wide range of evidence, coming not only from the Parties and Mytaxi, but also from other reliable sources, such as a legal opinion of the Italian Transport Authority, information from the Municipalities of Rome and Milan and a report published by consulting company KPMG. Furthermore, the Council of State held that the ICA was right in considering that the non-compete and exclusivity clauses were capable of preventing entry into the market for taxi demand management services and could have led to a decrease in output and quality of services, as well as an increase in prices.

The non-compliance decision

On September 21, 2021, the ICA fined Yellow Tax €5,000 for non-compliance with the Decision, pursuant to Article 15(2) of Law No. 287/1990.

In particular, the ICA referred to the contractual clause that allegedly prohibited Yellow Tax affiliated taxi drivers from using services offered by competing operators. The ICA found that instead of eliminating or reducing the scope of this clause, Yellow Tax had merely decided, in June 2020, to temporarily suspend its application, and had communicated its decision to taxi drivers almost one year later. According to the ICA, Yellow Tax amended the existing agreements with taxi drivers, by eliminating the clause concerned, only after the ICA issued a statement of objections in the non-compliance proceeding, in June 2021.

In the ICA’s view, the fact that Yellow Tax had submitted an application for the revision of the Council of State’s judgments, which was still pending, could not call into question the definitive nature of these judgments, nor the enforceability of the Decision.

[1]      ICA, Decision of September 21, 2021, Case I801BB, Servizi di prenotazione del trasporto taxi – Milano – Inottemperanza.

[2]      ICA, Decision of June 27, 2018, Case I801B, Servizi di prenotazione del trasporto mediante taxi – Milano.

[3]      TAR Lazio, Judgments of 29 April, 2019, Nos. 5359, 5418 and 5419. On these judgments, see Cleary Gottlieb, Italian Competition Law Newsletter, April 2019, available at: https://www.clearygottlieb.com/-/media/files/italian-comp-reports/italiancompetitionlawnewsletterapril19pd-pdf.pdf

[4]      Council of State, Judgments of 4 June, 2020, Nos. 3501, 3502 and 3503. On these judgments, see Cleary Gottlieb, Italian Competition Law Newsletter, June 2020, available at: https://www.clearygottlieb.com/-/media/files/italian-comp-reports/italian-competition-law-news-letter-june-2020.pdf.