On March 15, 2022, the ICA imposed fines of over €90 million on the associations of undertakings Anica, Anec and Anec Lazio, representing the Italian film and audiovisual industry as well as companies managing cinemas in Italy (jointly the “Associations”), for an alleged collective boycott infringing Article 101 TFEU.[1]
The proceedings were opened in June 2020, on the basis of various complaints filed by companies and associations organizing free outdoor film screenings in summer in Italy. The complainants claimed that the Associations had engaged in a boycott and obstructive conduct, aimed at preventing them from obtaining the authorizations necessary for outdoor film screening.
During its investigation, the ICA found that, since 2018, the Associations had adopted decisions and guidelines capable of influencing the business strategy of their members, allegedly with a view to preventing outdoor cinemas throughout Italy from obtaining films to be screened for free during the summer. According to the ICA, the Associations issued such decisions and guidelines as a result of a joint decision-making process, as confirmed by the exchange of emails and the organization of joint meetings.
During the proceedings, the ICA adopted interim measures (upheld by the TAR Lazio following an application for annulment filed by the Associations), ordering the Associations to: (i) immediately cease implementing the alleged boycott decision or agreement; and (ii) revoke all communications and indications containing any form of influence and/or guidance on business strategy on films for their members.[2]
In the final decision, the ICA rejected the Associations’ argument that free outdoor cinemas could not be considered undertakings for the purposes of competition law. In this regard, the ICA recalled that the notion of undertaking is particularly broad and also encompasses entities offering services for free to consumers (such as free outdoor film screening). Furthermore, the ICA asserted that, in any event, what matters is that the entities to which Article 101 TFEU is applied (in this case, the Associations) are undertakings or associations of undertakings, not the status of the targets of the alleged anticompetitive conduct.
In addition, the ICA took the view that the Associations’ conduct impaired the ability of Italian consumers to access free outdoor film screenings during the summer, thus compromising the quality of the offering of cinematographic products to end-users and distorting competitive dynamics in the Italian markets for film distribution and screening.
However, taking into account the objective difficulties experienced by the Italian film industry due to the Covid-19 pandemic, the ICA applied a significant reduction in the fines imposed on the Associations, pursuant to Article 34 of its Fining Guidelines (namely, a 60% reduction in the fines imposed on Anec and Anec Lazio, and a 40% reduction in the fine imposed on Anica).[3]
[1] ICA, Decision of March 15, 2022, No. 30065, Case I840 – Ostacoli alle arene a titolo gratuito.
[2] ICA, Decision of July 8, 2020, No. 28286, Case I840 – Ostacoli alle arene a titolo gratuito, upheld by TAR Lazio, Judgment of September 7, 2021, No. 9524 (see Cleary Gottlieb, Italian Competition Law Newsletter, September 2021, available at: https://www.clearygottlieb.com/-/media/files/italian-comp-reports/ italian-competition-law-newsletter—september-2021.pdf).
[3] ICA, Decision of October 22, 2014, No. 25152, Guidelines on the method of setting pecuniary administrative fines pursuant to Article 15(1) of Law No. 287/90.