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Antitrust: Rassegna di tutta la giurisprudenza amministrativa nel trimestre ottobre / dicembre 2013 – II parte

Pubblichiamo nel nostro blog il secondo dei tre articoli di Carlo Edoardo Cazzato apparsi su Concurrences il 16 gennaio 2014 (per leggere il primo contributo, clicca qui) in cui l’autore passa in rassegna tutta la giurisprudenza amministrativa antitrust nel trimestre ottobre /dicembre 2013. Il secondo contributo analizza la decisione del TAR Lazio, Sez. I, n. 8752 del 10 ottobre 2013.

The Italian Regional Administrative Court of First Instance annuls in parte qua the Italian Competition Authority’s decision concerning an abuse of dominant position in gas distribution services sector (Italgas).

Key words: Italy, abuse of dominant position, access to information, tender procedures.

*Italian antitrust administrative case law. Overview of all decisions from October to December 2013 (second contribution)

1. Premise – This work is part 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 proceedings 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 each quarter.

On this basis, this work concerns the last quarter of 2013, from the start of October to the end of December 2013 (hereinafter, the “Quarter”)[3].

As far as we know, the Quarter under discussion saw the AGCM was involved in nine TAR decisions[4]. However, among them, one is related to unfair commercial practices[5] and one to the right to access documents during an antitrust proceeding[6]. In light of the above, they will not be taken into account for the purpose of the Project under consideration, which will focus on the remaining seven cases[7].

In the same manner, as far as we know, during the Quarter the AGCM was involved in only three decisions issued by the CdS[8]. However, one of these concerns employment relationships so it will not be taken into consideration[9]. Finally, the Project will examine in depth only two decisions of the CdS[10].

In light of the above, the present work will focus on the second decision taken into account – TAR Latium, Sec. I, 10 October 2013, No. 8752 (hereinafter, the “Judgement”) -, 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[11], will be integrated by other one submission thoroughly examining the residual concerned decisions[12].

2. The Judgement – The Judgement closed a judicial proceeding started by the action brought by Italgas – Società Italiana per il Gas S.p.A. (hereinafter, the “Italgas”) against the AGCM and the Municipalities of Rome and Todi, aimed to annul the AGCM’s decision No. 23114 issued on 14 December 2011 at the end of the proceeding No. A/432 (hereinafter, the “Decision”)[13].

It appears useful to recreate the framework in which the Decision under discussion was adopted by the AGCM.

2.1. At its meeting on 14 December 2011, the AGCM imposed on Italgas a fine of € 4,671,447 for abuse of dominant position.

According to the AGCM, Italgas had obstructed competition through its initial refusal to provide and subsequent lateness in providing the Municipalities of Todi and Rome with information required to prepare contract notices for the tendering of gas distribution services. Specifically, the AGCM’s investigation established that Italgas had acted to exclude potential competitors from competing for the tender. Indeed, the data under discussion was needed by local authorities to prepare competitive contract notices, on the one hand, and by competitors to formulate competitive offers and participate in the tenders, on the other one.

Italgas, as exiting manager, sought to preserve its privileged access to the information inherent to its legal monopoly, thus enabling it to formulate the most competitive offer by exploiting the informational asymmetry of its competitors.

For the Rome and Todi tenders, Italgas’s behaviour resulted in serious damage to the competition as the Municipalities in question were forced to postpone the calling of the tenders. For instance, in Todi’s case, in accordance with the rules for blocked tenders that were subsequently activated, the delay ensured that the firm would enjoy another term of direct assignment.

Finally, with the aim to calculate the related fine, the AGCM took into account the cooperative behaviour of the Italgas, which, although belatedly, implemented the commitment assumed during the hearing before the AGCM by communicating the rate schedules to the Municipality of Todi and by expressing its willingness to communicate them to the Municipality of Rome.

2.2. Italgas challenged the Decision before the TAR.

According to Italgas, the AGCM would have made the following mistakes:

(i) Italgas would have not infringed Article 102 of TFEU. The ascribed lateness in providing the Municipalities of Todi and Rome with the required information (about five months) was perfectly consistent with the legal framework in force and with the sectorial practice. In addition, according to Italgas the Regulation concerning this kind of tenders, which singles out a period of ninety days to send the requested information, was not in force when the AGCM requested the information under discussion. In any case, in the Italgas’s view the term of ninety days would be enough in case of large Municipalities like Rome.

(ii) The information subjected to the lateness of Italgas would have not been essential in order to carry out the tenders under discussion;

(iii) The information subjected to the lateness of Italgas would have not been essential in order to calculate the compensation payable to the exiting manager;

(iv) Italgas would have not delayed the transmission of information already available;

(v) The lateness in the launch of the related tenders would have not been caused by Italgas but by the same Municipalities;

(vi) The decision of Italgas to not send to the Municipalities some specific information was consistent with the legal framework in force and the related sectorial practice;

(vii) The final sanction imposed by the AGCM would have been in contrast with the proportionality principle both objectively and subjectively. Indeed, the AGCM would have not taken into account first that the ascribed conduct was not serious and secondly that the said anti-competitive conduct would have been favored by the confused legal framework in force. In addition, in the Italgas’s view the duration of the infringement taken into account by the AGCM would be too long.

2.3. First of all, the TAR highlighted the singularity of a proceeding where two distinct events were jointly examined.

Indeed, the tenders carried out by the Municipalities of Rome and Todi are completely different. The only common aspects regard the involvement of Italgas, as exiting manager, and the timetable of the said tenders (the end of 2009). In light of the above, the AGCM decided to jointly examine the events, imposing just one sanction, as Italgas realized concurrent infringements.

On this basis, the Court highlighted that the events under discussion supposed the same legal question. In absence of a complete legal framework which singled out the information that the exiting manager needed to send and the related timetable, it is essential to verify whether in the proceeding under discussion the AGCM either applied its powers or operated as a regulatory Authority.

Indeed, according to the TAR, the Regulation concerning this kind of tenders and its related term (ninety days) were not applicable to the case under discussion. Indeed, it was not in force when the AGCM requested the said information to Italgas. In light of this, the lateness ascribed to Italgas needs to be assessed on the basis of the timetable which reasonably would have been awaited in the concrete cases.

With reference to the tender concerning the Municipality of Rome – the main thema decidendum – the lateness covered about ten months from the request of information (7 September 2010) up to the launch of the same tender (4 August 2011).

Although the AGCM took into account a lateness of about fourteen months, the Court confirmed its conclusions, considering unjustified the lateness of Italgas. Indeed, the investigation highlighted that the main part of the requested information was already available.

The Court spent the same arguments with reference to the tender concerning the Municipality of Todi. Also in this case, the conduct of Italgas was considered unlawful but the infringement less long (not eighteen but seven months from the request of information to the suspension of the said tender by the Legislative Decree No. 93 of 1 June 2011).

In light of this, the TAR decided to accept the last ground of Italgas sub (vii), annulling in parte qua the Decision. Consequently, it reduced the sanction by one-third (€ 1,557,149) on the basis of the new duration of the said infringement.

Successively, the Court decided to apply an additional reduction (again by one-third) on the basis of the uncertainty concerning the legal framework in which the events occurred. Indeed, according to the TAR “it was very difficult to draw the line between the ascertained Italgas’s will and the certainty to operate in line with the legal framework in force”.

In addition, in the Court’s view this reduction follows the absence of evidences concerning the substantial damages on competitors and users which come from the said lateness and the advantages of Italgas in the following tenders concerning the Municipality of Rome, carried out through a complete set of information.

In light of these arguments, the final sanction passed from € 4,671,447 to € 1,557,149.

 


[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] The first contribution to the Project concerning all the decisions from April to June 2013 was divided into four submissions, published as follows: C.E. Cazzato, The Italian Regional Administrative Court of First Instance orders the Competition Authority to recalculate fines imposed in a price fixing case in the land based international shipping sector (Agility Logistics, Albini & Pitigliani), 11 avril 2013, Bulletin e-Competitions September 2013-II, Art. N° 54771; C.E. Cazzato, The Italian Regional Administrative Court of First Instance partially annuls the Competition Authority in a public procurement case (2iGas Infrastruttura, E.ON Rete, Linea Distribuzione), 7 mai 2013, Bulletin e-Competitions September 2013-II, Art. N° 54772; C.E. Cazzato, The Italian Regional Administrative Court of First Instance clarifies the calculation of interests in case of delay in the payment of antitrust fines (Jotun Italia), 10 juin 2013, Bulletin e-Competitions September 2013-II, Art. N° 54773; C.E. Cazzato, The Italian Supreme Administrative Court confirms the NCA’s decision imposing a fine against construction materials company for abusing its behavior by aiming to exclude competitor’s entry into the plasterboard market (Saint Gobain), 21 mai 2013, Bulletin e-Competitions September 2013-II, Art. N° 54778. The second contribution regarding all the decisions from July to September 2013 was published as follows: C.E. Cazzato, The Italian Regional Administrative Court of First Instance annuls the NCA’s decision concerning the abuse of dominant position of a company aimed to exclude competitor’s entry into mass retail markets (Coop Estense), 2 August 2013, e-Competitions Bulletin October 2013-I, Art. N° 57717.

[4] The powers of AGCM were involved in an administrative judgement also in the following ten case: TAR Latium, Sec. III-Quarter, 1 October 2013, No. 8514; TAR Latium, Sec. I, 23 October 2013, No. 9115; TAR Latium, Sec. III-Quarter, 24 October 2013, No. 9138; TAR Latium, Sec. III-Bis, 29 October 2013, No. 9214; TAR Latium, Sec. I, 8 November 2013, No. 9528; TAR Latium, Sec. III-Bis, 11 November 2013, No. 9597; TAR Latium, Sec. III-Bis, 28 November 2013, No. 10180; TAR Latium, Sec. III-Ter, 28 November 2013, No. 10206; TAR Latium, Sec. III-Bis, 2 December 2013, No. 10305; TAR Latium, Sec. I-Ter, 10 December 2013, No. 10677. However, it is essential to highlight that in these cases the AGCM was not party during the related proceedings.

[5] TAR Latium, Sec. I, 15 October 2013, No. 8838.

[6] TAR Latium, Sec. I, 30 October 2013, No. 9261.

[7] TAR Latium, Sec. I, 7 October 2013, No. 8671; TAR Latium, Sec. I, 7 October 2013, No. 8672; TAR Latium, Sec. I, 8 October 2013, No. 8674; TAR Latium, Sec. I, 8 October 2013, No. 8675; TAR Latium, Sec. I, 8 October 2013, No. 8676; TAR Latium, Sec. I, 8 October 2013, No. 8677; TAR Latium, Sec. I, 10 October 2013, No. 8752.

[8] In addition, in the following seven cases the AGCM’s powers were involved before the CdS: CdS, Sec. III, 28 October 2013, No. 5177; CdS, Sec. VI, 12 November 2013, No. 5419; CdS, Sec. III, 20 November 2013, No. 5496; CdS, Sec. VI, 22 November 2013, No. 5536; CdS, Sec. III, 18 December 2013, No. 6057; CdS, Sec. III, 18 December 2013, No. 6058; CdS, Sec. V, 27 December 2013, No. 6256. However, in these proceedings the AGCM was not party so that they will not be taken into consideration with the aim of the Project.

[9] CdS, Sec. VI, 4 November 2013, No. 5287.

[10] CdS, Sec. VI, 20 November 2013, No. 5500; CdS, Sec. VI, 20 November 2013, No. 5501.

[11] It concerns TAR Latium, Sec. I, 7 October 2013, No. 8671; TAR Latium, Sec. I, 7 October 2013, No. 8672; TAR Latium, Sec. I, 8 October 2013, No. 8674; TAR Latium, Sec. I, 8 October 2013, No. 8675; TAR Latium, Sec. I, 8 October 2013, No. 8676; TAR Latium, Sec. I, 8 October 2013, No. 8677.

[12] It regards CdS, Sec. VI, 20 November 2013, No. 5500; CdS, Sec. VI, 20 November 2013, No. 5501.

[13] AGCM, A432 – Comuni vari-Espletamento gare affidamento servizio distribuzione gas, Decision of 14 December 2011, No. 23114, in Boll. Uff., No. 50/2011.