The Italian Competition Authority grants an interim junction to allow the carrying out of a competitive tender procedure in the public local transport services sector (Gara TPL Padova)

The Italian Competition Authority grants an interim junction to allow the carrying out of a competitive tender procedure in the public local transport services sector (Gara TPL Padova)

In the case Gara TPL Padova the Italian Competition Authority (ICA), on the basis of Article 14-bis of the Italian Competition Act no. 287/1990, took an interim measure ordering one of the firms under scrutiny to provide a contracting authority with the necessary data to be included in the tender notice that the addressee of the order had not previously provided[1].
The Province of Padua (PP) was the contracting authority for the competitive tender procedure to select the supplier of local public transport services in the territorial ambit of Padua. Busitalia Sita Nord (BSN) and APS Holding (APS), controlled by BusItalia Veneto (BV), were the holders of the concessions, respectively, for the urban public transport and non-urban public transport services in the territorial ambit of Padua. APS also held a 45% stake in BV. Though, the contracting authority invited the incumbents to transmit the information and data about the public services to be awarded, the PP complained with the ICA that BV and APS did not hand in the information needed to draft the tender notice.
Under Article 14-bis of the Italian Competition Act no. 287/1990, in urgent cases where there is a risk of serious irreparable damage to competition (periculum in mora requirement), the ICA may, where a cursory examination reveals the existence of a contravention (fumus bonis iuris requirement), decide ex officio to adopt an interim measure. BV and its shareholder APS enjoyed a dominant position in the relevant product market for the provision of local public transport services within the territorial ambit of Padua. Referring to the seminal CJEU judgment of Oscar Bronner, the ICA reminded that a dominant undertaking cannot, without valid justification, refuse to give third parties access to facilities, including data and information, that are essential to enter a market.
The ICA noted that BV, BSN and APS failed to transmit or lately transmitted to the contracting authority the information the latter asked for with the view to draft the tender notice. The ICA was of the opinion that such conducts amounted to an abuse of dominant position, thereby meeting the fumus bonis iuris requirement in Article 14-bis. As BV and BSN supplied the contracting authority with all the required data, the ICA was not empowered to adopt an interim measure against those firms. Instead, it found that APS could have complied with the request of PP, but it did not. The APS defensive arguments were contradicted by the evidentiary documents gathered by the ICA showing that APS acted in that way with the only purpose to delay the competitive tender procedure and, therefore, the APS conducts met the periculum in mora requirement. The APS conduct might inflict a serious irreparable damage to competition in the relevant market, delaying the launch of the competitive tender procedure as reported by the PP.  The delay resulted in higher costs for PP and benefits for the incumbent in the shape of the prorogation of the length of the previous public service contracts.
In conclusion, the ICA adopted an interim measure against APS, imposing on it the obligation to the transmit the data and information requested by the contracting authority within the deadline of 29th July 2016. Interestingly, a recent survey conducted by the ICA revealed that competition in the markets for local transport services was rather weak[2] due to the fact that, amongst other things, over the past 20 years only a few competition tender procedures have been launched to award a contract for the supply of local public transport services. Interestingly, the interim measure adopted in Gara TPL Padova dealt precisely with that issue.




[1] Id., decision no. 26129 of 20 July 2016, Case A495 Gara TPL Padova, Bullettin no. 28 del 27 June 2016, 
http://www.agcm.it/component/joomdoc/bollettini/28-16.pdf/download.html.
[2] Italian Competition Authority, decision of 1 June 2016, Case IC47’ , Condizioni concorrenziali nei mercati del trasporto pubblico locale, http://www.agcm.it/component/joomdoc/allegati-news/IC47.pdf/download.html. 

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