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Antitrust: Rassegna di tutta la giurisprudenza amministrativa nel trimestre aprile / giugno 2013 – II parte

Pubblichiamo nel nostro blog il secondo dei quattro articoli di Carlo Edoardo Cazzato apparsi su Concurrences il 12 settembre 2013 (per leggere il primo contributo, clicca qui) in cui l’autore passa in rassegna tutta la giurisprudenza amministrativa antitrust nel trimestre aprile/giugno 2013. Il secondo contributo analizza la decisione del TAR Lazio, Sez. I, n. 4478 del 7 maggio 2013.

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Italian antitrust administrative case law. An overview of all decisions from April to June 2013. Second contribution: TAR Latium, Sec. I, 7 May 2013, No. 4478.

1. Premise – This work is the second contribution of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, which involve the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter, the “AGCM”).

Specifically, the reference is to those decisions related to proceeding concerning only anticompetitive agreements and abuses of dominant position in which the AGCM was party (as either plaintiff or respondent). With this purpose the Project will take into account all the decisions of the TAR Latium (the Italian Regional Administrative Court of first instance, hereinafter the “TAR”)[1] and of the Consiglio di Stato (the Italian Administrative Court of second instance, hereinafter the “CdS”)[2] in the first quarter taken into consideration, from the start of April to the end of June 2013 (hereinafter, the “Quarter”).

As far as we know, the Quarter under discussion saw the AGCM involved in nine decisions of TAR. Among them, one is related to unfair commercial practices[3], one case concerns the new AGCM’s powers ex article 21-bis of Law No. 287 of 10 October 1990 (hereinafter, the “Italian Competition Law)[4] and in two decisions the TAR limited itself to dismiss the proceedings[5]. In light of the above, they will not be taken into account for the purpose of the Project under consideration, which will focus only on the residual five cases[6].

In the same manner, as far as we know, during the Quarter the AGCM was involved in three decisions issued by the CdS. However, one concerns a case of unfair commercial practice and another one a merger so they will not be taken into consideration[7]. Finally, the Project will examine in depth only one decision[8].

In light of the above, the present work will focus on the third decision taken into account – TAR Latium, Sec. I, 7 May 2013, No. 4478 (hereinafter, the “Decision”) -, highlighting the aspects of interest. In order to offer the above said general overview of the concerned Quarter, the present article, which follows the First contribution[9], will be integrated by other two submissions thoroughly examining the residual concerned decisions.

 

2. On 7 May 2013 the TAR issued the Decision, concerning proceeding I740 of the AGCM.

As known, at its meeting on 2 August 2012, the AGCM stated that 2iGas Infrastruttura Italiana Gas S.r.l. (at the time E.ON Rete S.r.l., hereinafter respectively “2iGas” and “E.ON Rete”) and Linea Distribuzione S.r.l. (hereinafter, “LD”) restricted competition in the natural gas distribution market, forming a competition-restricting agreement (hereinafter, the “Gas Decision”)[10].

Specifically, according to the AGCM, LD and 2iGas formed a temporary joint-venture (known as “ATI”) to take part in the tender called by the Municipality of Casalmaggiore, despite being able to bid individually as competitors. In the AGCM’s view, the ATI had the aim to guarantee that both companies could continue to manage the gas distribution service independently, in the exact same Municipalities in which each had previously operated. In addition, it allowed 2iGas and LD to obtain the optimum economic conditions for the tender.

In light of the above, the AGCM decided to impose a joint and several fine totalling €1,205,308 on E.ON Italia S.p.A. (at the time the parent company of E.ON Rete, which later became 2iGas, hereinafter “E.ON Italia”) and 2iGas, and a joint and several fine totalling €129,675 on Linea Group Holding (the parent company of LD, hereinafter “LGH”).

The Gas Decision was challenged before the TAR by E.ON Italia, Enel Rete Gas S.p.A. (hereinafter, “Enel Rete Gas”)[11], LD and LGH. The related actions were joined.

First of all, in the Decision the TAR accepted the grounds concerning the relevant market taken into account by the AGCM. The Court did not confirm the relevant market singled out by the Gas Decision. Indeed, according to the TAR the possibility to single out a small portion of the territory[12] as relevant market does not exclude the necessity to individuate conditions of autonomous supply and demand compared with that in contiguous areas. Indeed, “the mere existence of a situation of supply – side monopoly does not characterize the territorial area under discussion which does not have specific attributes compared to the about 6,500 local markets in which the demand may be equally distributed” (§ 4.5.1). In the same manner, in the TAR’s view the AGCM did not establish that services requested by the Municipality of Casalmaggiore had specific characteristics able to be singled out as a separated market. This conclusion would be confirmed by the same case law of the AGCM[13].

In addition, the TAR affirmed that the possibility to single out a specific tender as relevant market is subordinate to the evidence that the anticompetitive agreement was within a substantial part of the national market[14]. In light of the above the quantitative and qualitative relevance of the involved market needs to be considered as the prerequisite of the AGCM’s sanctioning powers. According to the TAR this requirement was missing in the case under consideration because the Casalmaggiore’s tender regarded less than 1% of the national gas users.

Secondly, the TAR excluded the existence of the ascertained anticompetitive agreement. To this regard, the TAR highlighted that, even if the assessment of the anticompetitive effects of the agreement need to be taken into account only in order to grade the related sanction, each anticompetitive agreement has to be structurally able to significantly and uninterruptedly impact on the market.

On this basis, the TAR took into account the fact that the Italian Code of Public Contracts[15] does not single out limits regarding the use of the ATI and that in the same manner according to case law this device may not considered ex se unlawful[16]. In addition, as known, horizontal co-operation agreements can lead to substantial economic benefits, in particular if they combine complementary activities, skills or assets. Horizontal co-operation can be a means to share risk, save costs, increase investments, pool know-how, enhance product quality and variety, and launch innovation faster.

As admitted by the same AGCM, in the case of ATI the unlawfulness needs to be ascertained on the basis of specific symptomatic signs. However, in the TAR’s view, those cited by the AGCM (§ 6.2.) and substantially consisting in the common willingness to renounce an autonomous policy in name of a joint approach to the involved tenders are not enough to establish that the ATI was designed to infringe competition rules.

3. Conclusions – The Decision pertaining to the device, known as ATI, appears coherent with the recent Italian administrative case law.

Specifically, the CdS already examined the topic of the relationship between ATI and antitrust infringements, highlighting that the use of this device, when it is not necessary in order to take part in the tender, did not represent ex se an infringement.

According to the CdS on the basis of the case law of Italian Courts[17] and of the AGCM[18], the ATI may be considered anticompetitive only when the device is chosen in a factual context, which highlights the anticompetitive aim of the involved undertakings.

 


[1] All the related decisions are available at

http://www.giustizia-amministrativa.it/WEBY2K/frmRicercaSentenza.asp

[2] All the related decisions are available at

http://www.giustizia-amministrativa.it/webcds/frmRicercaSentenza.asp

[3] TAR Latium, Sec. I, 11 April 2013, No. 3722.

[4] TAR Latium, Sec. II, 6 May 2013, No. 4451.

[5] TAR Latium, Sec. I, 22 April 2013, No. 4009 and TAR Latium, Sec. I, 22 April 2013, No. 4011.

[6] TAR Latium, Sec. I, 11 April 2013, No. 3718; TAR Latium, Sec. I, 11 April 2013, No. 3724; TAR Latium, Sec. I, 7 May 2013, No. 4478; TAR Latium, Sec. I, 10 June 2013, No. 5796; TAR Latium, Sec. I, 11 June 2013, No. 5822.

[7] CdS, Sec. VI, 18 April 2013, No. 2143 and CdS, Sec. VI, 12 April 2013, No. 2002, respectively.

[8] CdS, Sec. VI, 21 May 2013, No. 2722.

[9] Which concerns TAR Latium, Sec. I, 11 April 2013, No. 3718; TAR Latium, Sec. I, 11 April 2013, No. 3724.

[10] AGCM, I740 – Comune di Casalmaggiore-Gara per l’affidamento del servizio di distribuzione del gas, Decision of 2 August 2012, No. 23794, in Boll. Uff., No. 31/2012.

[11] E.ON Italia, part of the E.On AG Group, before of 7 April 2011, controlled E.On Rete. This has before changed its name in 2iGas and after was incorporated in Enel Rete Gas.

[12] See CdS, Sec. VI, 9 April 2009, No. 2206; CdS, Sec. VI, 12 February 2001, No. 652; CdS, Sec. VI, 14 March 2000, No. 1348.

[13] See AGCM, A248 – Fornitura pezzi di ricambio caldaie a gas, Decision of 22 April 1999, No. 7115, in Boll. Uff., No. 16/1999 and AGCM, C11695 – Cassa Depositi e Prestiti/SNAM, Decision of 8 August 2012, No. 23824, in Boll. Uff., No. 32/2012.

[14] See CdS, Sec. VI, 24 September 2012, No. 5067.

[15] See Article 34, paragraph 1, lett. d) of Legislative Decree No. 163, dated 12 April 2006, .

[16] See CdS, Sec. VI, 24 September 2012, No. 5067; CdS, Sec. III, 11 June 2012, No. 3402; CdS, Sec. VI, 29 December 2010, No. 9577.

[17] See note No. 17; see also CdS, Sec. VI, 9 April 2009, No. 2208; CdS, Sec. VI, 8 March 2006, No. 1267; TAR Latium, Sec. I, 3 July 2012, No. 6044.

[18] See AGCM, Bandi predisposti dalla concessionaria servizi informatici pubblici – Consip S.p.A., Decision of 7 February 2003, in Boll. Uff., No. 5/2003.