The Italian Competition Authority opens an Article 102 TFEU investigation in the market for local public transport services

By a decision made on 15 June 2016, Case A496 Gara TPL Padova, the Italian Competition Authority (ICA) has opened an Article 102 TFEU investigation against Busitalia Veneto (BV), Busitalia Sita Nord (BSN) and APS Holding (APS). BSN and APS were the holders of the concessions for the urban public transport and non-urban public transport services in the territorial ambit of Padua, respectively. In April 2015 BV purchased BSN and APS, stepping in for BSN and APS as provider of those transport services. The ICA investigation was triggered by a complaint filed by the Province of Padua (PP), one of the local authorities in charge for the provision of those public transport services, which reported a number of allegedly abusive conducts implemented by BV, BSN and APS.
The relevant product market was the market for the provision of local public transport services within the territorial ambit of Padua, in which PD enjoyed a dominant position. The first abusive conduct contested to BV was frustrating the organisation of a competitive tender procedure for the selection of the supplier of the transport services that, under the Italian regulatory framework, the PP should conclude by the deadline of 31 December 2016. BV did not give promptly or did not give at all to PP all the necessary data concerning the local public services which were needed by PP to draft the tender notice. As a result, PP was unable to award the new concession within the statutory deadline. In that regard, the ICA noticed that the above conducts of BV occurred especially after the PP and the Region of Veneto rejected the 5-year business plan and the shareholder agreement drafted by BV. In the ICA view, by acting in this way, BV might hold the concessions even beyond the 2016 deadline, thereby delaying the further opening of the market.
The second abusive conduct was the BV threat to discontinue the selling of electronic tickets should PP refuse to authorize the price increase requested by BV. The ICA pointed out that in support for its request BV did not furnish any objective justifications as for the reasons why the price should be increased. The ICA feared that BV might obtain an unreasonable increase in the price for e-ticketing services.
Curiously, the ICA decision in Gara TPL Padova came hot off the press the publication by the ICA of a survey into the markets for local transport services (IC47, Condizioni concorrenziali nei mercati del trasporto pubblico locale). The ICA outlined the weak competition structure of these due to the fact, among other things, that over the past 20 years only a few competition tender procedures have been launched to award the concessions for local public transport services.



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