The Italian Competition Authority targets exclusionary conducts of the Italian Stock Exchange

The Italian Competition Authority (ICA) has recently opened an Article 102 TFEU investigation against London Stock Exchange Holdings Italia (LSEHI) and its subsidiaries Borsa Italiana (BI) and BIt Market Services (BIMS) (Case A-482, Borsa Italiana, ).
BI had a dominant position in the market for the organization and management of platforms for the trading of securities. In such a capacity it supplied financial data regarding the transactions executed through its trading platforms to financial intermediaries or information providers. The recipients of such data then used them to carry on their own activities in the downstream markets for the provision of financial information.
The ICA examined the terms BI inserted in the supply contracts since 2013, whereby it imposed on information providers the obligation to periodically give it a detailed list of their customers. The ICA also considered the auditing activities conducted by BI with regard to the information providers that purchased the data. Though the aim of the audit was to determine the amount of the fees due by the information providers to BI, the ICA feared that the audit could reinforce the anti-competitive effects of the contractual terms.
The ICA believed that the above conducts were part of a exclusionary strategy pursued by the LSEHI vertically integrated group, to which both BI and BIMS belonged. The BI conducts appeared to target the information providers competing with its sister company BIMS in the downstream market for the provision of finacial information. The ICA concern was that such conducts would foreclose them. Indeed, relying on the vertical links with BI, BIMS could know in advance the needs of clients of its competitors. Therefore it would enjoy an undue competitive advantages over its competitors because it could target the customers of competitors by offering them bespoken commercial offers.Therefore, the conducts of BI might have a negative effects on competition by making the services of competitors of BIMs less attractive, thereby marginalizing their market position. More importantly, the ICA viewed the financial information supplied by BI as an essential input for information providers. Accordingly, it took the view that the conducts of BI might fall within the scope of the doctrine of essential facilities, with the result that the dominant firm should give competitors access to such facilities on fair and non discriminatory conditions. In that regard, the ICA also lent support from the MiFID, which imposes on the manager of trading platforms the obligation to grant access to the data generated by the platforms on reasonably commercial terms.

In conclusion, the facts of the Borsa Italiana case appear to be similar in some respects to those of Clearstrem Banking v Commission (Case T-301/04, ECR II-3155) in which the General Court of the EU (GC) considered the application of the doctrine of essential facilities, or rectius of the duty of supply for a dominant firm in the financial industry. By its judgment the GC upheld the finding of the European Commission that Clearstream infringed Article 102 TFEU by refusing to supply Euroclear Bank (EB) clearing and settlement services. The result of the Clearstream conducts was to hinder the EB capacity to provide cross border clearing and settlement services, which in light of Microsoft (Case T-201/04), were considered as an innovative product. That said, both BI and Clearstream had a monopolist position and also the exclusionary conducts of Clearstream targeted competitors of a sister company. BI and Clearstream were unavoidable trading partners since foreclosed undertakings could not duplicated the services the dominant undertakings refused to supply.  

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