Abuse

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.

On December 19, 2019, the FCO published its first report on market power in the electricity generation sector (“Market Power Report”).[1] The report is intended to provide market participants with more legal clarity as to their own position in the market, thereby complementing the recently published FCO/FNA Guidelines on the control of abusive behavior in the electricity generation and wholesale trade sector[2].

On December 28, 2020, the FCO published its second report on market power for the electricity generation sector (“Market Power Report”)[1] one year earlier than statutorily required, because the FCO considered the imminent phase-out of nuclear and coal energy could affect the position of the market leader RWE.

On December 18, 2019, the Court of Milan rejected an action for damages brought by Enter S.r.l. (“Enter”) against Telecom Italia S.p.A. (“TIM”) in follow-on litigation for an alleged abuse of dominance in the provision of wholesale access services, which had been established and fined by the Italian Competition Authority (the “ICA”) in 2013.[1]

On November 14, 2019, the Paris Court of Appeals annulled a decision of the French Competition Authority (“FCA”) which, for the first time since the 2011 Fining Guidelines, had fined a company for abusing its dominant position through excessive pricing.[1] The Court set the conditions for finding exploitative abuses and held that the FCA had failed to show that Sanicorse’s price increases were “objectively unfair”.

On October 29, 2019, the Italian Competition Authority (the “ICA”) issued a decision (the “Decision”)[1] imposing interim measures on the Italian Consortium for the Collection, Recycling and Recovery of Plastic Packaging (“COREPLA”) in the framework of the investigation it opened six months earlier into COREPLA’s alleged abuse of dominant position in the market for management of plastic waste recycling services. According to the ICA, the interim measures will prevent serious and irreparable harm to competition likely to be caused by COREPLA’s conduct, which prima facie constitutes an infringement of Article 102 TFEU.

On October 17, 2019, the Regional Administrative Tribunal for Latium (the “TAR Lazio”) ruled on appeals by companies belonging to the Enel and Acea groups, two major energy firms active, among others, in the distribution and sale of electricity in Italy, against Italian Competition Authority (“ICA”)’s decisions finding that the two incumbents had abused their dominant position in local markets for retail electricity supply.[1]