competitionlaw

The limits within which the companies created by public entities for the supply of goods or services can also supply public entities other than the incorporating ones are long debated by the Italian legal community. A recent judgment by the regional administrative court of Puglia (Tar Puglia) contributes to the debate by clarifying the scope of application of the ban on extramoenia activities the so-called Bersani Act of 2006 imposes on certain public and semi-public companies (Tar Puglia, chamber of Lecce, case n. 908/2009, TRT Trasporti e Territorio/Autorità Portuale di Brindisi ). Article 13 of the Bersani Act applies to fully or partially publicly owned companies incorporated or participated by regional or local public entities for the provision of goods and services, which are necessary for the institutional activities of the public entities, except for local public services and statutorily enlisted cases regarding the carrying out of outsourced administrative activities. The com...

In the space of a month this is the second time the Italian Competition Authority or ICA deals with the status of congested airport of the Milan airport of Linate (LIN) and recommends to raise the cap on hourly movements at this airport. (AGCM, opinion A522, Determinazione della capacità operativa massima dell’aeroporto di Milano Linate). The first time the ICA dwelled on this issue, although incidentally, it was with the opinion it gave on the new regime for public service obligations regarding the air links between Sardinia and Continental Italy (AGCM AS 509, see post of 16 April 2009). This time the ICA head-on tackles the issue of the dearth of slots at LIN. The Italian authorities have arbitrarily decided to limit the hourly capacity of LIN to 18 flights. This figure is by far lower than the potential capacity of LIN and many slot applications remain unsatisfied, thereby frustrating the plans of many carriers to operate new routes to/from LIN. Such limitation is indeed a very se...

The French competition regulator, the Autorité de la Concurrence (AdC), has decided to examine and give an opinion on the decision of SNCF, the French incumbent railway undertaking, to reorganize its rail stations management business ( AdC, decision 09-SOA, Saisine d’office pour avis du 18 mai 2009 relatif à une saisine d'office pour avis dans le secteur du transport public terrestre de voyageurs, http://www.autoritedelaconcurrence.fr/pdf/avis/09soa01.pdf. ) The legal basis of the AdC decision can be found in the new Article 462-d of the French code de commerce which empowers the competition regulator to give an opinion on any competition issue and recommend the measures necessary to strengthen the competitive structure of markets. The SNCF engaged in the reorganization of its business division for rail stations management following a recommendation made in a survey “La gare contemporaine” carried out by the French Parliament. This document deals with which competition rules that a...

The Consiglio di Stato, the Italian higher administrative court, has reverted the approach until recently embraced by administrative judges and the national competition regulator (ICA) with regard to the qualification of mere acquisition of retail trade licences as a concentration (case n.1894/2009, Lidl/Autorità Garante della Concorrenza e del Mercato ). This approach was based on a structural criterion, according to which to have a concentration is necessary that through the consummation of the transaction a modification of the competitive market structure is likely, be a reduction in the size of an undertaking or its exit from the market. According to the ICA and the administrative court of first instance (Tar), the mere acquisition of retail trade licences made by Lidl in order to combine them and obtain a licence to open mid-size shops, as allowed by the Italian law, met this requirement. Such licences are finite assets because with their acquisitions Lidl impeded competitors fr...

The Italian Competition Authority has given a negative opinion on the decision taken by the Province of Trento to directly assign, without any tender procedures, a contract for the local public transport services to Trentino Trasporti Esercizio, a publicly owned undertaking ( AGCM, case AS518- Provincia Autonoma di Trento-Servizi di Trasporto Pubblico Locale). Such decision falls within the scheme of in-house provision of public services. Since the inception of the new regime for the award of public contracts regarding public local services having economic relevance with Article 23-bis of Law 133/2008, for the first time the ICA assessed a in-house assignment of a public transport services contract. The general rule provided by Article 23-bis as for the assignment of public contract is that the public administration chooses the supplier by means of a competitive tender procedure. As a derogation to the above general rule, a tender procedure is not necessary when the peculiar economic,...