Recent developments in Italian competition law (2012)

In these notes I will review and critically assess the main antitrust decisions taken by the Italian Competition Authority (hereafter: Agcm) in 2012 (1). As last year, no particular innovations were registered with regard to Agcm’s interpretation of basic antitrust concepts like “undertaking concerned”, “agreement” and “consistency of restriction” of the analysed practices. Similar evaluations can be made with regard to the identification of “relevant markets” and “dominant positions”, as well as for the application of the fines laid down in the Italian antitrust law. This statement holds true for anticompetitive agreements, abuses of dominant position and for mergers. However, some interesting trends, inaugurated in recent years, with regard to the general approach of Agcm’s enforcement strategy were confirmed. Firstly, what in 2012 was emphatically termed as the inauguration of a possible counter-tendency in Agcm’s enforcement strategy, is in fact gaining solidity. Far from being just an occasional finding, Agcm is effectively making less and less use of commitment decisions to close files in both restrictive agreements, where all of the four cases were closed through the ascertaining of an infringement and imposition of fines, and abuse of dominance cases, where only a slight minority of proceedings (three out of ten) were closed with the acceptance of commitments. Agcm itself speaks in this regard of a “diminished opening towards solutions of negotiated nature” (2). Considered altogether, fines applied in cases decided in 2012 amounted to over E60 Millions. Secondly, once again this year Agcm intervened on market information flows, confirming the importance of the exchange of information not just in cartel cases but also (and especially) in unilateral practices. As a result, more informational abuses were condemned and more informational commitments accepted in 2012. Thirdly, both in agreement and abuse of dominance cases Agcm condemned practices consisting of a strategic anti-competitive use of the existing regulatory framework. With regard to mergers, where most operations (four out of five) were authorised conditionally, Agcm placed major attention on the ability of firms to use consumers’ brand loyalty as a barrier to competition and devoted much effort in assessing its impact on the planned concentrations. Moreover, with regard to Agcm’s power to issue opinions concerning the “in-house provision” of local public services, the (still fragile) regime in place has been annulled by the Italian Constitutional Court (dec, no. 199/2012) on the ground that it substantially reintroduced a discipline that was made void by a popular referendum. Finally, more legislative intervention has taken place in 2012 with an aim to further strengthen Agcm’s advocacy powers.