On October 29, 2021, the ICA decided to close the investigation into an alleged abuse of dominant position by Husky Injection Molding Systems (“Husky”), without finding any infringement.[1] The ICA found that the evidence collected during the investigation did not allow it to confirm the allegations put forward at the beginning of the proceedings (the “Decision”).

On January 28, 2020, after having received a complaint, the ICA decided to open an investigation under Article 102 TFEU into Husky, which is active in the sale of both machinery and molds for the production of PET pre-forms. According to the complaint, Husky had installed a system on its new generation high pressure processing machinery to make it work at full speed only when the original Husky molds were installed. In addition, Husky had allegedly threatened to refuse to provide technical assistance to customers using competitor molds on their machines.

In its Decision, the ICA found that there was insufficient evidence to demonstrate that Husky’s conduct significantly restricted competition.

Based on the documents acquired during the investigation, Husky’s system did not prevent clients from using third-party molds. If they used third-party molds, due to security reasons, the system reduced machinery performance in terms of speed by 10%. However, according to the ICA, there was no evidence that this limited reduction in speed was a decisive factor in a buyer’s choice of machinery and molds. Other factors, such as price and interoperability, were also important to the buyers. Therefore, the decrease in production speed did not appear detrimental to competitors (whose turnover had increased over time) nor capable of influencing client choice.

The ICA underlined that, in cases of technological tying (such as the Google Shopping[2] and Google Android[3] cases handled by the European Commission), substantial evidence is needed to prove that the alleged conduct could potentially restrict competition.

The approach adopted by the ICA in this Decision seems to be consistent with another recent antitrust decision, concerning alleged exclusionary conduct related to machinery interoperability and maintenance services.[4] In both decisions, the ICA concluded that not every difference in treatment by a vertically integrated company between its downstream business units and competitors is capable of distorting competition, thus upholding a stricter standard of proof for findings of discriminatory conduct.

[1]      ICA, Decision of October 29, 2021, Case A537, Mercato della produzione di contenitori in PET.

[2]      European Commission, Decision of June 27, 2017, Case AT39740 – Google Shopping.

[3]      European Commission, Decision of July 18, 2018, Case AT40099 – Google Android.

[4]      ICA, Decision of March 30, 2021, Case A517, Mercati di manutenzione di dispositivi diagnostici. On this Decision, see Cleary Gottlieb, Italian Competition Law Newsletter, April 2021, available at: https://www.clearygottlieb.com/-/media/files/italian-comp-reports/italian-competition-law-newsletter–april-2021-pdf.pdf