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

Continuiamo con la pubblicazione nel nostro blog degli articoli di Carlo Edoardo Cazzato apparsi su Concurrences il 16 gennaio 2014 (per leggere i contributi precedenti, clicca qui e qui) in cui l’autore passa in rassegna tutta la giurisprudenza amministrativa antitrust nel trimestre ottobre /dicembre 2013. Il terzo ed ultimo contributo analizza la decisione del Consiglio di Stato, Sez. VI, del 20 Novembre 2013, N. 5500.

The Italian Regional Administrative Court of Second Instance annuls the Italian Competition Authority’s decision concerning an abuse of dominant position in motorway assistance sector (Europe Assistance VAI).

Key words: Italy, abuse of dominant position, commitments, judicial review.

*Italian antitrust administrative case law. Overview of all decisions from October to December 2013 (third and last 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]. 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, therefore 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 last decision taken into account – CdS, Sec. VI, 20 November 2013, No. 5500 (hereinafter, the “Judgement”)[11] -, highlighting the aspects of interest. Please consider that the present article follows two previous submissions concerning the residual decisions issued during the Quarter.

2. The Judgement – The Decision concerns the proceeding A391.

At the end of the investigation under discussion on 23 October 2008 the AGCM decided to accept and make obligatory the commitments offered by Autostrade per l’Italia S.p.A. (hereinafter, the “Autostrade”), Strada dei Parchi S.p.A. (hereinafter, the “Strada dei Parchi”), Società Autostrada Tirrenica S.p.A. (hereinafter, the “Società Autostrada Tirrenica”), ANAS S.p.A. (hereinafter, the “ANAS”), ACI Global S.p.A. (hereinafter, the “ACI Global”), Europe Assistance VAI S.p.A. (hereinafter, the “Europe Assistance VAI”) and Associazione Italiana Società Concessionarie Autostrade e Trafori (hereinafter, the “AISCAT”)[12].

As known, the related investigation was launched in 2007 in order to verify whether (i) ANAS, Strada dei Parchi and Società Autostrada Tirrenica abused of their dominant position and/or (ii) ACI Global and Europe Assistance VAI realized an anti-competitive arrangement[13].

Specifically, sub (i) according to the AGCM the motorway operators ANAS, Società Strada dei Parchi and Società Autostrada Tirrenica would have exploited the dominant position they enjoyed over breakdown assistance by charging towing and repair companies a fee for the services furnished by the radio rooms that handle motorists’ calls. Such a fee would have not justified by any regulation. In addition, under the preliminary assessment of the AGCM the three said motorway operators would have subjected to the renewal of ACI’s and Europe Assistance VAI’s authorization to carry out the service to the payment of a much-increased charge for each intervention carried out on their networks.

Sub (ii) the AGCM supposed that ACI Global and Europe Assistance VAI would have realized an anticompetitive arrangement parallel fixing their commercial conditions at the same level set by their association (AISCAT).

According to the Decision, the commitments offered during the proceeding by the companies reduced the cost of breakdown assistance due to the increased competitive pressure resulting from the potential entry of new operators which were interested in providing such services on the motorway network.

Specifically, the said companies offered the following commitments:

(a) With reference to the alleged anti-competitive arrangement, ANAS, Autostrade and the other companies in the group undertook to call for public bids before assigning mechanical assistance services on short stretches of motorway. In addition, such services would have been subdivided into assistance for heavy vehicles and for light vehicles. Specifically, with reference to the latter, the maximum charge foreseen in the selection process would have been equivalent to the maximum currently charged less 20 per cent. All other conditions being equal, the operators selected would have been those that propose the lowest charges. Satellite technology would also have been introduced to allow the motorway management company’s radio room to locate in real time the nearest adequately equipped breakdown vehicle. For assistance calls in perfectly safe locations (service or parking areas), the motorway companies undertook to allow users to choose an authorized breakdown operator according to the conditions they offered. The setting up of information panels would have facilitated the motorist’s choice.

In addition, ACI Global and Europe Assistance VAI presented commitments to cancel or modify reciprocal agreements with competing operators and to avoid any form of sharing with competitors in matters relating to breakdown services. AISCAT undertook to modify its Statute in order to eliminate any interference with the economic conduct of the breakdown companies and to limit discussions in its meetings with industry operators to issues of an exclusively technical nature.

(b) Secondly, with reference to the alleged abuse of a dominant position, ANAS, Autostrade and the group’s two concession-holders, Strada dei Parchi and Società Autostrade Tirrenica, completely eliminated the radio room fee previously charged to breakdown operators.

According to the AGCM, these innovations would have encouraged the entry of new operators, eliminating the concerns highlighted in the launch of the related investigation.

2.2. Europe Assistance VAI challenged the Decision before the TAR in 2009.

The related sentence, issued on 8 May 2009 (hereinafter, the “Sentence“)[14], accepted the grounds submitted, annulling the Decision.

According to the Sentence, through its Decision the AGCM adopted a “manipulative measure”, assuming an improper regulatory role. Specifically, in the TAR’s view the AGCM would have infringed the European principle under which the commitment decisions needed to be limited to remove the concerns expressed by the AGCM in its preliminary assessment. On the contrary, while the launch of the investigation concerned inter alia the fee for the services furnished by the radio rooms that handle motorists’ calls, the accepted commitments consisted in “a significant modification of the same market, passing it from a system based on an authorization to a model founded on a concession”. In addition, according to the Sentence the AGCM would have not justified the adequacy of the commitments offered and accepted compared to the concerns highlighted in the launch of the investigation.

2.3. The AGCM challenged the Sentence of the TAR asking CdS to reject the original appeal of Europe Assistance VAI.

According to the appeal:

(i) The AGCM would not have exceeded its role because a concession system is inborn to the motorway assistance under the Italian legal framework;

(ii) The Decision would have been consistent with the proportionality principle, resolving the concerns highlighted in the preliminary assessment of the AGCM;

(iii) Through the Sentence the TAR would have exceeded the limits of the technical discretion of the AGCM.

Finally, the AGCM highlighted that the commitments accepted were the only measures able to remove the said concerns.

2.4. The Judgement rejected the appeal of the AGCM, completely confirming the Sentence.

According to the CdS, the Sentence had not exceeded the limit of the technical discretion of the AGCM. On the contrary, it highlighted several specific profiles of abuse of power.

These profiles effectively occurred. Indeed, according to the CdS through the Decision the AGCM effectively exceeded its powers, arbitrarily assuming a regulatory role. Indeed, the transposition from a system based on an authorization to that grounded on a concession which supposes a specific tender would have had to be realized through a different proceeding which was not started in light of specific and limited antitrust concerns.

In addition, the proceeding A391 did not assess hypotheses alternatives to those provided by the Decision and it did not take into account interests of operators which were not parts of the said investigation.

3. Conclusions – The peculiarity of the Judgement is that the related Sentence followed an action brought by a company which submitted a commitments offer during the proceeding A391.

Into the merits of the Judgement, it 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] 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 cases: 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] The residual CdS, Sec. VI, 20 November 2013, No. 5501 is in line with the Judgement. In this case ACI Global challenged the Decision before the TAR and the related sentence was appealed by the AGCM.

[12] AGCM, A391 – Servizi di soccorso autostradale, Decision of 23 October 2008, No. 19021, in Boll. Uff., No. 40/2008.

[13] AGCM, A391 – Servizi di soccorso autostradale, Decision of 20 September 2007, No. 17328, in Boll. Uff., No. 33/2007. The investigation was objectively and subjectively extended through AGCM, A391 – Servizi di soccorso autostradale, Decision of 5 December 2007, No. 17673, in Boll. Uff., No. 46/2007.

[14] TAR Latium, Sec. I, 8 May 2009, No. 5005; in the case of ACI Global’s appeal the Sentence of the Court of First Instance is the following: TAR Latium, Sec. I, 8 May 2009, No. 4994.

[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.