The Gift of the Providence: An Italian administrative court qualified a theatre as an essential facility

Can the doctrine of an essential facility apply to a theatre of a small town? This question has been addressed by the Regional Administrative Court for Lazio (Tar Lazio) in the judgment in the Teatro della Provvidenza case. According to the Tar Lazio the reply to the question was in the affirmative and it categorized the Teatro della Provvidenza or Theatre of Providence owned by the Diocese of Vallo della Lucania, a small town in Southern Italy, as an essential facility. Thus, the message coming through the judgment is that the doctrine of essential facilities also applies to small-sized infrastructures, provided that the 4-pronged test for the application of the doctrine is met. However, the validity of this idea in Teatro della Provvidenza is marred by the shoddy administration of the test for essential facility made by the Tar Lazio when assessing the non-duplicability requirement. Indeed, firstly it embraced quite a narrow definition of the relevant geographic market, which was local in scope and limited to the area of Cilento where Vallo della Lucania was situated. Secondly, it pointed out that for the applicant for access to the theatre, an association of comedians (Associazione Culturale Compagnia Michele Murino Cilento Arte), it was impossible to duplicate the asset. This ruling was based on the fact that the applicant was unable to build a brand new theatre of its own due to the lack of financial resources as reflected in its 2008 tax return.

It is precisely such erroneously extensive interpretation of the non duplicability requirement that vitiated the application of the doctrine of the essential facilities to the theatre of Vallo della Lucania. This approach is quite generous for those seeking access to facilities, but it is too harsh for the owners of the facilities that may have required to share their assets even when duplicating them is not an insurmountable obstacle for competitors.

The Tar Lazio ruling is then inconsistent with the position of the ECJ in Bronner. It made it clear that a facility could not be duplicated due to economic reasons when the market was not sufficiently large to sustain a second facility. Therefore, neither for an undertaking with the same size as the owner of the facility building a new facility would be economically profitable. This is an objective assessment which is at odds with the more relaxed subjective approach adopted by the Tar Lazio, which took into account only the weak financial situation of the applicant.

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