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Antitrust: Rassegna di tutta la giurisprudenza amministrativa nel trimestre aprile / giugno 2013 – Parte IV

Quarto contributo di Carlo Edoardo Cazzato apparso su Concurrences il 12 settembre 2013 (per i precedenti clicca qui, qui e qui) in cui l’autore passa in rassegna tutta la giurisprudenza amministrativa antitrust nel trimestre aprile/giugno 2013. Qui di seguito l’ultimo contributo che analizza la decisione del Consiglio di Stato, Sez. VI, n. 2722 del 21 maggio 2013.

Italian antitrust administrative case law. An overview of all decisions from April to June 2013. Fourth and last contribution: CdS, Sec. VI, 21 May 2013, No. 2722.

1. Premise – This work is the fourth and the last 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 sixth decision taken into account – CdS, Sec. VI, 21 May 2013, No. 2722 (hereinafter, the “Decision”) -, highlighting the aspects of interest. Please consider that the present article follows three previous submissions concerning the residual decisions issued during the Quarter.

 

2. The Decision concerns the proceeding A383. As known, concluding the investigation under discussion on 30 June 2010 the AGCM imposed a fine of €2,165,787 on the undertaking Saint Gobain Ppc Italia S.p.A. (hereinafter, the “SG“) for an abusive behaviour aimed to exclude or at least hinder and delay Fassa S.p.A.’s entry into the plasterboard market (hereinafter, the “Fassa“)[9].

Specifically, the AGCM ascertained that SG had sought to impede the opening of a new plasterboard production facility by Fassa, the interested party, in Calliano (Monferrato). On this basis, in a market characterized by very few operators, SG applied a strategy that was designed to hinder Fassa’s access to the gypsum reserves needed to produce and market plasterboard.

The investigation confirmed that SG had interfered with Fassa’s contractual negotiations with gypsum deposit owners, both directly and by persuading farmers with land pre-emption rights to resist via legal channels. In addition, SG subsequently launched several initiatives that were designed to mitigate the current impact of these behaviours. These initiatives by SG

SG challenged the AGCM’s decision before the TAR in 2010. However, the related sentence, issued on 24 December 2011 (hereinafter, the “Sentence“)[10], confirmed the AGCM’s conclusions regarding the singled out relevant market, the dominant position of the plaintiff and the abusiveness of the concerned conducts.

On appeal, SG has substantially once again put forward the same grounds set forth before the TAR, additionally challenging the ratio decidendi of the Sentence.

In this perspective, first of all the Decision explained that according to current administrative case law the Judge cannot be a substitute for an administration but he shall ascertain its possible manifest erroneous assessment. This general rule needs to be mitigated in the case of independent authorities such as the AGCM. Indeed, in this case according the same case law the Judge cannot exercise a substitute power except for the imposed sanctions with reference to which a more penetrating control is admissible[11].

Moreover, the CdS assessed the legality of the AGCM’s decision on the basis of the following parameters:

(i)    The correct representation of fact[12];

(ii)   The coherence and the reliability of the completed investigation and the conducts executed in order to cease the infringement; the adequacy and the reason of the plea in law, on the basis of parameters of common experience and with reference to all the figures of the misuse of power;

(iii)  The correct application of the involved technical rules.

On the basis of the above said parameters, the CdS confirmed the Sentence.

First of all, the CdS shared the market definition in the AGCM’s decision. It was singled out in a macro-area, taking into account the main part of central-northern Italy, the south-east of France, part of Suisse and the west of Austria.

In the same manner, the CdS confirmed the dominant position of SG, singled out by the AGCM in a market share greater than 40%. Specifically, in the CdS’s opinion the AGCM correctly took into account the characteristics of the involved sector. In this perspective, the AGCM accurately assessed the entry barriers caused by the scarcity in nature of the indispensable gas, the SG’s share of sales equal to about 55%, the importance and pre-eminence of SG’s products and brands. In addition, the CdS considered analytic the arguments of the Authority against that of SG, which were unable to highlight any form of misuse of power.

With reference to the abusiveness of concerned conducts, it is essential to remember that according to the investigation under discussion SG would (i) impede the opening of a new plasterboard production facility by Fassa and (ii) interfere with Fassa’s contractual negotiations with gypsum deposit owners, both directly and by persuading farmers with land pre-emption rights to resist via legal channels. According to the CdS the AGCM correctly established the above also through oral testimony, by which SG’s intent to block or delay Fassa’s entry appears clear. In addition, during the investigation the AGCM rebutted SG’s arguments, which were proposed again before the CdS. Finally, the CdS did not ascertain the contested distortion of facts but only a different assessment of them. The evidential framework singled out by the AGCM appeared coherent and unequivocal. In light of that SG would establish that the contested conducts were unable to alter the competition in the concerned market[13].

Finally, with reference to the amount of the imposed sanction, the CdS shared the conclusion of the AGCM. Specifically, regarding the imposition of a symbolic fine requested by SG, the CdS highlighted that this device was completely inapplicable in the case under discussion because of the complexity of the investigation under discussion.

3. Conclusions – Most decisions, in which the AGCM was involved during the Quarter, concerns anticompetitive agreements. This was allegedly caused by the general pre-eminence of cartel cases compared with the number of abusive conducts[14].

The Decision appears consistent with the dominant administrative case law. Indeed, according to a strengthened position administrative Courts “shall assess the facts, in order to ascertain whether the factual reconstruction was affected by distortion or defects, and assess whether the relevant rules were correctly singled out, interpreted and applied […]”[15]. Specifically, the case law has ascertained that the administrative Courts through a case-by-case approach “shall balance the effectiveness of judicial protection with the technical discretion of the AGCM, avoiding that the Judge exercises the AGCM’s administrative powers[16].


[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] AGCM, A383 – Mercato del cartongesso, Decision of 30 June 2013, No. 21297, in Boll. Uff., No. 26/2010.

[10] TAR Latium, Sec. I, 24 December 2011, No. 10180.

[11] See, ex pluribus, CdS, Sec. III, 25 March 2013, No. 1645; CdS, Sec. VI, 7 November 2005, No. 6152; CdS, 2 March 2004, No. 926; CdS, Sec. VI, 1 October 2002, No. 5156; CdS, Sec. VI, 23 April 2002, No. 2199.

[12] See Cass., SS.UU., 29 April 2005, No. 8882.

[13] See, ex multis, C-49/92 P – Commission of the European Communities v Anic Partecipazioni, Judgment of the Court (Sixth Chamber) of 8 July 1999; C-235/92 P – Montecatini v Commission of the European Communities, Judgment of the Court (Sixth Chamber) of 8 July 1999; CdS, Sec. VI, 23 June 2006, No. 4017; CdS, Sec. VI, 10 February 2006, No. 548; CdS, Sec. VI, 2004, No. 926; CdS, Sec. VI, 30 August 2002, No. 4362.

[14] M. Carpagnano – A. Nuzzi, L’antitrust in numeri. Rappresentazione quantitativa sintetica dell’attività di tutela della concorrenza svolta in Italia nel 2011, Trento-Roma, giugno 2012, pp. 16-17, available at www.osservatorioantitrust.eu. An analysis of the current year, is available at http://www.osservatorioantitrust.eu/index.php?id=884&L=5%252525252525252525252525252525252525252525252525252525252527.

[15] See CdS, Sec. VI, 1 March 2012, No. 1192; CdS, Sec. VI, 24 September 2012, No. 5067; TAR Latium, Sec. I, 3 July 2012, No. 6044; TAR Latium, Sec. I, 18 December 2012, No. 8614.

[16] CdS, Sec. VI, 13 September 2012, No. 4873.