Abuse

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.

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.