On February 26, 2020, the Court of Rome issued a non-final judgment in an action for damages brought by Siportal S.r.l. (“Siportal”) against Telecom Italia S.p.A. (“TIM”) in follow-on litigation for an alleged abuse of dominance in the provision of wholesale access services,[1] which had been found and fined by ICA in 2013. The Court rejected TIM’s claim that the limitation period had expired, found that TIM had committed an abuse against Siportal, and asked the ICA to assist the Court with respect to the determination of the quantum of damages pursuant to Article 14(3) of Legislative Decree No. 3/2017.[2]
Fiber Roll-out and Abuse of Rights: ICA Fines Tim Over €100 Million for Abusing Its Dominant Position in the Wholesale and Retail Markets for BB and Ultra-BB Telecommunications Services in Italy
On February 25, 2020, the Italian Competition Authority (the “ICA”) imposed on Telecom Italia
S.p.A. (“TIM”) a fine of approx. € 116.1 million for abusing the dominant position it held both in the national market for wholesale access services to, and in the national market for retail telecommunications services on, the broadband (“BB”) and ultra-broadband (“UBB”) fixed network, in violation of Article 102 of the Treaty on the Functioning of the European Union (the “TFEU”).[1]
ICA Publishes Final Report on Big Data Sector Inquiry
On February 10, 2020, the Italian Competition Authority (the “ICA”) published its final report in the big data sector inquiry carried out jointly with the Italian Data Protection Authority (the “IDPA”) and the Italian Communications and Media Authority (the “ICMA”).[1]
The ICA Imposes a €228 Million Fine for an Alleged Cartels Between Telecom Operators With Regard to the Switch From 28-Day to Monthly Billing
On January 28, 2020, the Italian Competition Authority (the “ICA”) issued a decision finding that four telecom operators, namely Fastweb S.p.A. (“Fastweb”), Telecom Italia S.p.A. (“TIM” or “Telecom”), Vodafone Italia S.p.A. (“Vodafone”) and Wind Tre S.p.A. (“Wind Tre”) (together, the “Operators”), participated in a cartel aimed at coordinating their commercial strategies, with a view to keeping prices high during the transition from four-week (28 days) billing to monthly billing (so-called repricing), thus impeding competition and limiting the risk of customers migrating to other competitors.[1]
The Council of State Confirms the Annulment of an ICA Decision on an Alleged Cartels in the Reinforcing Steel Bars Sector
On January 21, 2020, the Council of State confirmed the annulment of a 2017 ICA decision sanctioning a cartel between manufacturers of reinforcing steel bars (rebars) and welded wire mesh.[1] In particular, the ICA fined eight companies (namely, Feralpi Siderurgica S.p.A., Ori Martin Acciaieria e Ferriera di Brescia S.p.A., Industrie Riunite Odolesi I.R.O. S.p.A., Riva Acciaio S.p.A., Ferriere Nord S.p.A. and Fin. Fer S.p.A., Stefana S.p.A., Ferriera Valsabbia S.p.A. and Alfa Acciai S.p.A., together the “Manufacturers”) in an amount in excess of €140 million for allegedly coordinating their commercial strategies between 2010 and 2016, by fixing prices and exchanging sensitive information (among other things through the trade association Nuovo Campsider, “NC”).[2] The Council of State, fully upholding the TAR Lazio’s reasoning at first instance,[3] held that the appeal lodged by the ICA was unfounded on two fronts.
The TAR Lazio Quashes an ICA Decision Concerning an Alleged Abuse of Dominance in the Newspaper Sector
On January 16, 2020, the TAR Lazio[1] accepted the application filed by Società Iniziative Editoriali S.p.A. (hereinafter “SIE”), a company active in the daily newspaper market and publisher of the main daily newspaper in the area of Trento (L’Adige), for annulment of an ICA decision finding SIE to have abused its dominant position on the said market by refusing to license the editorial contents of its newspaper to companies providing daily press reviews in the area of Trento.
The Council of State Annuls an ICA Decision Sanctioning an Alleged Abuse of Dominance in the Gas Distribution Sector, by Relying on Coase’s and Hobbes’ Theories of Economic Efficiency
On January 13, 2020, the Council of State upheld the appeals lodged by E.S.TR.A. S.p.A. and its subsidiary E.S.TR.A. Reti Gas S.r.l. (together, “E.S.TR.A.”),[1] and annulled the 2012 decision in which the ICA had fined E.S.TR.A. for abusing its dominant position in a local market for gas distribution, in a case raising novel and complex issues.
The Council of State Reiterates the Principle That Evidence Produced in Criminal Proceedings May Be Used by the ICA To Demonstrate an Anticompetitive Infringement
On January 10, 2020, the Council of State rejected the appeals brought against two judgments issued by the TAR Lazio in 2016, which upheld an ICA decision finding an anticompetitive bid rigging agreement in the railway transportation sector.[1] In particular, in 2015 the ICA found that 12 companies active in the railway industry had secretly colluded with a view systematically to allocating public procurement contracts covering the whole national territory, as well as by agreeing on their respective bids.[2]
The Council of State Annuls the Judgments of the Tar Lazio That Quashed an Ica Decision Fining Bid-rigging Practices in the Home Oxygen Therapy and Home Mechanical Ventilation Sectors
Background
The decision of the ICA
On December 21, 2016, the ICA concluded its investigation into certain anticompetitive practices allegedly implemented by major firms active in the provision of home oxygen therapy (“HO”) and home mechanical ventilation (“HMV”) services. According to the ICA, Linde Medicale S.r.l. (“Linde”), Medicair Italia S.r.l. (“Medicair”), Medigas Italia S.r.l. (“Medigas”), Sapio Life S.r.l. (“Sapio”), Vitalaire Italia S.p.A. (“Vitalaire”), Vivisol S.r.l. (“Vivisol”), Eubios S.r.l. (“Eubios”), Oxy Live S.r.l. (“Oxy”), Ossigas S.r.l. (“Ossigas”), Magaldi Life S.r.l. (“Magaldi”) and Ter.gas. S.r.l. (“Ter.gas.”) participated in three separate agreements affecting the outcome of open tender procedures for the provision of HMV in part of the Milan province, HMV and HO in the Marche region and HO in the Campania region, launched by ASL Milano 1, ASUR Marche and SORESA between 2012 and 2014.[1]
The Council of State Orders the ICA to Re-assess Alleged Anticompetitive Conduct in the Market for Maintenance Services for TIM’s Electronic Communications Networks
On December 23, 2019, the Council of State upheld the appeals brought by TIM and a number of firms active in the provision of corrective maintenance services for its electronic communications networks (the “Maintenance Firms”)against the judgments of the TAR Lazio that had confirmed the ICA’s decision finding an anticompetitive agreement in the market for the above-mentioned services.[1]