Essential Developments in Competitors Regulation and Coverage 2021 – Italy


In 2021, subsequent to the exercise of the Italian Competitors Authority (“ICA”) and of the courts, the Italian legislator regarded into competitors legislation as a software to unleash financial progress in opposition to the backdrop of the continued Covid-19 outbreak.

 

A “aggressive” Restoration and Resilience Plan

Within the opening speech of his authorities, Prime Minister Mario Draghi introduced the intention to introduce, within the context of the Italian Restoration and Resilience Plan (“PNRR”), a contest reform primarily based on proposals from the ICA. In March 2021, the ICA responded to this chance by publishing its proposals of competitors reform. The competitors reform was then included within the last model of the PNRR as an “enabling” reform, which permits the total implementation of subsequent reforms. On 3 December, the federal government introduced to the Parliament a draft invoice on competitors reform, which transposes a number of ICA’s recommendations. Initially, the draft invoice goals at establishing a giant novelty for firms and personal practices concerned in antitrust proceedings earlier than the ICA: the settlement process. Settlement procedures, regardless of having been used for a while by the European Fee, are at the moment not explicitly regulated by Italian competitors legislation. Second, merger management shall be primarily based by legislation on the SIEC check, in comparison with the present evaluation formally primarily based solely on verifying whether or not the merger creates or strengthens a dominant place. Third, ex officio ICA’s powers shall be elevated to permit scrutiny – as much as 6 months following completion – of transactions exceeding solely one of many two turnover thresholds for notification or a worldwide cumulative turnover of EUR 5 billion, in case the ICA detects precise aggressive dangers, considering additionally results on modern SMEs. Furthermore, additional changes will align the turnover calculations for banking and monetary establishments and for the evaluation of joint ventures to the Fee’s follow. It stays to be seen whether or not the draft invoice on competitors will retain all its novelties at promulgation, after the parliamentary journey, and what affect it should have on the financial restoration, coupled with the regulatory simplification and the “opening” of service concessions, that are additionally a part of PNRR’s “enabling” reforms.

 

The transposition of the ECN+ Directive

On a associated word, the Italian legislator additionally transposed the ECN+ Directive. By means of legislative decree No. 185 of 29 November 2021, Italian competitors legislation was amended, in order to strengthen the sanctioning powers of the ICA, introducing periodic penalty funds and broadening the conditions which will enable the ICA to impose fines (even on pure individuals). As well as, the ICA’s powers to impose behavioral or structural treatments when discovering an anticompetitive settlement or abuse of dominance had been definitively acknowledged, though the matter was closely debated prior to now, since Italian competitors legislation didn’t explicitly confer such powers to the ICA. As well as, the legislative decree in query broadened the ICA’s powers for imposing sanctions on associations of undertakings and launched immunity from prison expenses because of leniency purposes for sure bid-rigging conducts. Total, the transposition of the ECN+ Directive has undoubtedly strengthened the function of the ICA, additionally throughout the ECN: the ICA was granted important powers to request cooperation from different nationwide competitors authorities and, in flip, was obliged to make sure its cooperation upon their request.

 

Agreements and abuses: the Amazon instances and the ICA’s new enforcement pattern in opposition to abuses of financial dependence

The ICA imposed a superb of over EUR 1 billion and behavioral treatments on Amazon for an abuse of dominant place out there for e-commerce logistics companies. The habits consisted in encouraging sellers on Amazon to make use of Amazon’s personal logistic service, known as Fulfilment by Amazon (FBA), by tying to the usage of FBA the entry to a set of unique advantages important for gaining visibility and improve gross sales on amazon.it (A528 – FBA Amazon). This selections concludes an investigation opened in April 2019 and follows the order of the EU Common Courtroom in T-19/21, Amazon.com and o. v Fee dismissing as inadmissible the motion introduced by Amazon in opposition to the parallel investigation opened by the Fee in November 2020 on the identical anti-competitive habits (AT.40703 – Amazon – Purchase Field). The truth is, the Fee’s investigation lined the entire EEA apart from Italy, exactly as a result of the ICA had already opened its personal investigation, and Amazon challenged it as a result of it ought to defend itself in opposition to two completely different authorities and the state of affairs may result in a divergent software of EU competitors legislation and the imposition of divergent penalties.

Beforehand this 12 months, the ICA imposed fines on Apple and Amazon for partaking in an anti-competitive settlement consisting in contractual clauses stopping sure Apple (official and non-official) resellers from accessing Amazon’s market companies in Italy (I842 – Vendita prodotti Apple e Beats su Amazon market). This choice by the ICA is noteworthy as a result of it confirms the ICA’s curiosity in scrutinizing anticompetitive agreements hampering competitors in on-line markets.

Alongside the identical line, the ICA has additionally opened an investigation into an alleged anticompetitive settlement amongst a number of the major insurance coverage firms/brokers and on-line comparability instruments (I856 – Comparatori di prezzo/Scambio di informazioni polizze RCA). In keeping with the ICA, the anticompetitive settlement would have taken the type of an alternate of competitively delicate data by periodic studies ready by on-line comparability instruments in relation to the insurance coverage premiums supplied by their platforms. The undertakings topic to investigation have lately supplied commitments, and the ICA determined in December 2021 to provoke a market check and assess their suitability to take away any competitors concern.

Lastly, the ICA appears to be making an increasing number of use of its competence to struggle abuses of financial dependence. The truth is, in the midst of 2021 the ICA fined Poste Italiane for greater than EUR 11 million (A539 – Poste Italiane/Contratti fornitura servizio recapiti) and opened three investigations in opposition to the fast-food firm McDonald’s (A546 – Franchising di McDonald’s), the style agency Unique Marines (A550 – Catena di franchising Unique Marines) and the telecom operator Wind/Tre (A547 – Condotte di Wind Tre a danno dei rivenditori) for alleged abuses of financial dependence carried out in opposition to their respective franchisees or resellers. It stays to be seen whether or not this can develop into a brand new enforcement pattern of the ICA however, for now, it’s value noticing that sure probably abusive conducts shouldn’t have to be carried out by undertakings dominant on a sure related market, in an effort to be thought of unlawful.

 

Merger management: treatments and referrals

In 2021, the ICA licensed a number of high-profile transactions in sectors that are on the coronary heart of the post-pandemic restoration. These included the clearance, topic to each behavioral and structural treatments, of the merger between Nexi and SIA involving eleven markets associated to fee companies, two of which had been the topic of the situations (C12373 – Nexi/SIA). This transaction is a part of the worldwide consolidation wave of the fee companies sector and that is mirrored within the geographical definition of the markets by the strain between the more and more cross-boundary nature of the companies and the regulatory frameworks nonetheless (principally) outlined at nationwide ranges.

Furthermore, the ICA conditionally licensed Cellnex’s acquisition of the CK Hutchison’s infrastructure for cellular telecommunications in Italy (C12358 – Cellnex Italia/CK Hutchison Networks Italia). Cellnex thus turned the second large participant out there along with INWIT, a joint-venture combining Tim and Vodafone’s infrastructure in Italy, topic to a treatment package deal by the Fee (M.9674 – Vodafone Italia/Tim/INWIT JV). Due to this fact, treatments imposed by the ICA on Cellnex complement INWIT’s EU treatment package deal to make sure the openness of the infrastructure to 3rd service suppliers and its exercise in much less populated areas.

It’s also noteworthy that the ICA conditionally cleared a focus between two main publishers (C12393 – Arnoldo Mondadori Editore/De Agostini Scuola). Within the choice, the ICA analyzed intimately the marketplace for secondary faculty textbooks, noting some peculiar options, such because the function of lecturers and sale brokers within the aggressive dynamics. This market is extremely concentrated and was the topic of a cartel investigation on the identical time (I848 – Problematiche concernenti l’attività di promozione nel mercato dell’editoria scolastica).

As well as, the ICA activated in 2021 its energy beneath Article 9 of the European Merger Regulation to request a referral from the European Fee in relation to a focus having European dimension. Extra exactly, Enel X (i.e. a department of the previous electrical monopolist in most of Italy, devoted to modern companies) and the German carmaker Volkswagen had notified to the European Fee the creation of a three way partnership for putting in, working and sustaining a community of publicly accessible high-power charging stations for electrical automobiles throughout in Italy (M.10311 – Enel X/VWFL/JV).  The ICA thought of that the transaction may threaten to considerably have an effect on competitors in Italy, and requested the Fee to refer the case. The Fee disposed the total referral of the focus to the ICA which, after opening an in-depth investigation, cleared the focus unconditionally (C12404 – Enel X-Volkswagen Finance Luxembourg /JVC). The referral reveals that the ICA is able to undertake a extra proactive method when it deems that sure concentrations (even these having a European dimension) may have an antagonistic affect on competitors in Italy. In these instances, it appears obligatory for undertakings to take the opportunity of a downward referral under consideration, additionally in gentle of the completely different regulatory framework governing concentrations in Italy. For instance, Italian merger management legislation prohibits focus from being applied previous to their notification (and never previous to their clearance as, as an alternative, the European merger regulation mandates).

 

Client safety: Fb and past

Along with its mandate as competition-law enforcer, the ICA can be accountable for client safety. On this discipline, as already recalled by Thomas Tiede on this weblog, a sanction was imposed on Fb (IP330 – Fb-Raccolta utilizzo dati degli utenti) for failure to adjust to a 2018 choice (PS11112 – Fb-Condivisione dati con terzi). The 2018 choice certified as unfair follow the corporate’s commercial that its companies had been freed from expenses, with out making customers conscious of the truth that their information had been used as compensation for the social media companies supplied.

Furthermore, though Italy has not but transposed Directive (EU) 2019/2161 (which, inter alia, requires Member States to set the utmost superb for sure unfair industrial practices to not less than 4% of the dealer’s annual nationwide turnover), the ICA will undoubtedly play a really attention-grabbing function in upcoming client safety actions, particularly because the loosening of the COVID-19 restrictions will make it simpler for the ICA to hold out unannounced inspections (that the ICA has solely lately restarted).

 

Italian courts between private and non-private antitrust enforcement

In the midst of 2021, moreover, the ICA was not left alone in its function of competitors legislation enforcer. Italian courts contributed as nicely to form important developments of competitors legislation and coverage.

In July 2021, the executive courtroom of first occasion competent for competitors issues (TAR Lazio) annulled an ICA choice that had fined the 4 major telecom operators in Italy for an alleged anticompetitive settlement. Extra exactly, ranging from 2015, a number of telecom operators began invoicing their payments each 4 weeks relatively than on a month-to-month foundation. This basically entailed a rise in worth of 8.6% over the 12 months and led a number of client associations to complain. Each a decision by the Italian telecommunications authority and a brand new legislation permitted by the legislator in 2017 imposed operators to determine invoicing interval of a number of months (and never much less). All telecom operators left unchanged the annual invoices and determined to go from 13 to 12 annual payments by growing the month-to-month bill by 8.6% (by a so-called “repricing”). The ICA opened an investigation and fined the 4 major telecom operators for an alleged anticompetitive settlement consisting within the setting of a standard technique on the right way to deal with this passage from 13 to 12 annual payments (i.e., by the repricing or in any other case) in an effort to restrict customers’ mobility. The TAR Lazio fully annulled the ICA’s choice deeming that it had disregarded key components of the opinion rendered throughout the case by the Italian telecommunications authority and it primarily based the discovering of the infringement on inconclusive and contradictory paperwork, a few of which dated even earlier than the beginning date of the cartel discovered by the ICA.

Lastly, as we summarized in a earlier publish on this weblog indicating the primary developments in competitors legislation and coverage in Italy for 2020, Italian courts are making front-line preliminary references to the Courtroom of Justice, which promise to be fairly attention-grabbing within the matter of abuses of dominance. In 2021 the listening to of Case C-377/20, Servizio Elettrico Nazionale happened and Advocate Common Rantos delivered his a lot mentioned opinion on the identical case (see right here for a publish on this weblog discussing the primary implications of this opinion). The judgement by the Courtroom of Justice guarantees to be one of many landmark and most referenced judgments on the matter of abuse of dominance, particularly in relation to data-related practices.

In relation to personal antitrust enforcement, in 2021 the primary recognized Italian judgment on the European Vans case (AT.39824 – Vans) was printed. Within the context of a follow-on motion primarily based on the settlement choice adopted by the European Fee in 2016, the Courtroom of Naples discovered that an enterprise having bought a truck from a vendor of a cartelist was entitled to assert from the latter compensation for the overcharge suffered. Though the Courtroom of Naples had requested for an professional opinion to quantify the damages suffered by the claimant, the opinion was inconclusive and in the end steered the Courtroom to quantify such damages on an equitable foundation. In consequence, the Courtroom awarded the claimant compensation for 15% of the truck’s internet buy worth.

 

Conclusion

To conclude this brief overview, ICA’s selections and courtroom judgments mentioned right here aren’t exhaustive. As completed in 2020, we chosen right here people who we thought formed competitors legislation and coverage probably the most in Italy in the midst of 2021. We expect that this choice presents an enough perspective for 2022, however please be at liberty to remark and add your views, as it’s within the spirit of a weblog.

 

Disclaimer: The knowledge and views set out on this publish are the authors’ personal and don’t essentially mirror the official opinion of their skilled organizations.

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