Some light on the scope of application of the exclusivity obligation the Bersani Act imposes on public and semi-public companies

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 companies being caught by Article 13 have to exclusively supply only the incorporating or participating public entities. Thus, they are not allowed to supply other private or public entities, either via a directly awarded contract or via a contract awarded through a tender procedure. Finally, the companies are banned from participating in other companies or entities.
By this judgment the Tar Puglia has quashed the decision of the Brindisi Port Authority (Autorità Portuale di Brindisi) to assign, as a result of a previous tender procedure, a consultation contract to a temporary group of undertakings. A 30% stake in one these undertakings, Logica, is held by Ente Autonomo Volturno, a company fully owned by the regional administration of Campania. That, in the view of Tar Puglia, violates Article 13. This ruling is grounded upon the basis of a teleological interpretation of Article 13, whose rationale is the preservation of competition and market transparency. These values may be undermined by the presence of companies participated by public entities. The stake held by public entities in these company may shelter them from business risks undertakings are normally exposed to while carrying economic activities. Therefore, the Tar Puglia extensively interprets the two requirements for the application of the Article 13 ban on extramoenia activities of public and semi-public companies.
• Participation held by a public entity: this requirement is met even when the company alleged to breach Article 13 is participated by a second company which is, in turn, controlled by a regional or local public entities.
• Functional link between activities of the participated company and institutional activities of the public entity: to met this requirement it is sufficient that, even though the activities of the participated company, namely as said above the supply of certain goods or services, are aimed at fulfilling the interests of third parties, such activities are of relevance for the general interest, for they are connected with the interests the public entity in question primarily and directly pursue.
Intuitively, the consequence of the above interpretation of Article 13 is to extend the range of public and semi-public companies which will fall within the scope of the application of the exclusivity obligation laid down by this provision.

Comments

Post a Comment

Popular posts from this blog

Aspen: The Italian Competition Authority fines a generic manufacturer of drugs for excessive pricing

By the decision made on 29 September 2016 in Aspen [i] , the Italian Competition Authority (ICA) has imposed a fine of more than EUR 5 million on the Aspen group (Aspen), a South African manufacturer of generic drugs. Aspen violated Article 102 TFEU by imposing excessive prices for the supply of the so-called ‘Cosmos drugs’. These drugs included Leukeran, Alkeran, Purinethol and Tioguanine, which included the active principles of chlorambucil, melphalan, mercaptopurine and tioguanine, respectively. All these drugs were used to treat cancer pathologies and included in a wider package of pharmaceutical products, whose marketing rights had been purchased by Aspen from the originator GlaxoSmithKline (GSK) in 2009. Aspen had a dominant position in the relevant product markets for the commercialization of anti-cancer drugs manufactured using the active principles of alkeran, leukeran, purinethol and tioguanine. It had the only one market authorization for the sale of drugs and potential ...
Read more

Geographical allocation of turnover in aviation mergers: What the European Commission recently hold

The European Merger Control Regulation (ECMR) stipulates that only concentrations with a European dimension fall within the regulatory jurisdiction of the European Commission to review. A concentration is presumed to have such a dimension when it meets the financial threshold in Article 1 of the ECMR. To this end, it is necessary to calculate the turnover generated by the merging parties within the Community or in one or more member states. However, the geographical allocation of the turnover required by Article 1 for the purpose to establish the Commission’s jurisdiction can be a tricky issue in case of mergers between undertakings with a cross-border activity such airliners. In fact, the activities of airlines span several countries as they typically operate flights and sell tickets in many national markets. Recently, the Commission has dealt with the issue at length in the Ryanair/Aer Lingus case. It identified three possible methodologies for geographical allocation of turnover: -...
Read more

The European Commission unconditionally clears the Facebook/WhatsApp merger

By a Phase I decision the Commission unconditionally approved the Facebook $ 19 billion acquisition of WhatsApp ( Case No COMP/M.7217,Facebook/WhatsApp) . The Commission was required by the parties to review the transaction by means of a reasoned submission filed on the basis of Article 4(5) of the EU Merger Regulation. Indeed, the merger was not a concentration with EU dimension within the meaning of Article 1 EUMR falling within the Commission jurisdiction, since the EU turnover of WhatsApp in 2013 failed to met the financial thresholds in that provision. The Commission identified three relevant product markets affected by the concentration. It restrained the first relevant market, the market for consumer communication services, to the communication apps for smartphones, because WhatsApp was available only for this device. Following its approach in Microsoft/Skype (Case M.6281), upheld by the General Court in the case T-79/12, Cisco Systems and Messagenet v Commission, the Com...
Read more