competitionlaw

By a decision taken on 6 March 2012 the Italian Competition Authority (ICA) has opened an Article 102 TFEU investigation against ENI (Case A440) , the dominant undertaking in the Italian gas market. The ICA believed that the ENI commercial conduct would amount to hoarding capacity, thereby harming its industrial customers. ENI owns the majority of primary capacity for the Transitgas and TAG gas pipelines, which link the North-European spot gas markets, namely the TTF and ZEE, to Italy. Regularly each year ENI organized auctions for allocate secondary capacity for these pipelines to interested third parties. Gas Intensive Società Consortile (GI), a joint-venture regrouping more than 300 firms that need large amount of gas, the so-called industrial customers filed a complaint with the ICA, indicating that since April 2011 ENI would have changed its commercial policy. Indeed, GI complained that, contrary to what it used to do, ENI refused to offer its secondary capacity on the Transit...

By a recent decision ( SP127 Rete Ferroviaria Italian/Bluferries ) the Italian Competition Authority (ICA) finds that when the manager of the national rail network it entered into a new transport market without complying with the principle of corporate separation infringed Article 8 of the Act 287/1990. Article 8 of the Act 287/1990 refers to undertakings entrusted with the operation of services of general economic interest or operating in the market as a monopolist. It lays down the principle that these undertakings have to incorporate separate companies in order to trade on markets other than those on which they are entrusted with services of general economic interest or are awarded exclusive rights (Article 8.2-bis). Article 8.2 ter imposes on these undertakings the obligation of prior notification of the incorporation of the companies to the Italian Competition Authority. If they fail to comply with this obligation, the Authority shall impose a fine of up to 100 million lire...

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: -...

By a recent judgment, case no. 5984/2010, Enel Rete Gas Spa v Comune di Uboldo , consistently with its case law, the Council of State confirmed that under the transitory period in Legislative Decree 164/2000 the service concessions for the distribution of natural gas automatically extended. Legislative Decree 164/2000, which implement into Italian legal system the Gas Directive 2003/55/EC provided for a five-year transitional period starting from 31 December 2004. This period was aimed at enabling the parties to service concessions in force on the date of the enactment of Legislative Decree 164/2000 to comply with the new regime. The transitional period applied to service concessions for distribution of natural gas awarded before the Decree. This period automatically extended if the concession-holder met certain dimensional thresholds before 31 December 2004. In the Rete Gas Spa v Comune di Uboldo case, the appealed, Municipality of Uboldo (the Municipality), had awarded the appellant...

In conditionally clearing the SNCF acquisition of Novatrans, the French Competition Authority (ADLC) has imposed a number of stringent conditions that should adequately address the risk of SNCF extending its market power from rail transport to into contiguous markets. SNCF is the French incumbent rail operator and owns Naviland Cargo, which is the main operator of combined rail-maritime transport and manages several terminals for this type of transport. By the notified operation, SNCF acquired exclusive control of Novatrans, the leading combined rail-road transport operator and manager of main terminals. Because post-merger SNCF would be active in all the stages of the combined merchandise transport chain, the ADLC considered that the merger was likely to create competition problems in three markets: the market for railway services for combined transport operators, the market for terminal services and the market for road-rail combined transport services. The market for railway servi...

A recent application of the Community guidelines on State aid for railway undertakings by the European Commission can be find in the case N 483/2009- Italia Regione Emilia Romagna-Aiuti a favore del trasporto ferroviario merci . In this decision the Commission assessed aid granted in favour of rail freight transport by the Italian region of Emilia Romagna on the basis of chapter six of the Guidelines. Eventually the Commission hold that the aid was compatible with the internal market and authorized it. The decision is worth reading for it gives an insight into the relevant elements for the Commission in assessing aid to rail. Before doing that, a short summary of the aid in question will be given. The aid is aimed at rebalancing the freight transport sector by incentivizing rail transport and intermodal transport services, namely those supplied with complete or block trains. Any rail service further than those operated the year before applying for aid and with point of origin/desti...

In the space of a month this is the second time the Italian Competition Authority or ICA deals with the status of congested airport of the Milan airport of Linate (LIN) and recommends to raise the cap on hourly movements at this airport. (AGCM, opinion A522, Determinazione della capacità operativa massima dell’aeroporto di Milano Linate). The first time the ICA dwelled on this issue, although incidentally, it was with the opinion it gave on the new regime for public service obligations regarding the air links between Sardinia and Continental Italy (AGCM AS 509, see post of 16 April 2009). This time the ICA head-on tackles the issue of the dearth of slots at LIN. The Italian authorities have arbitrarily decided to limit the hourly capacity of LIN to 18 flights. This figure is by far lower than the potential capacity of LIN and many slot applications remain unsatisfied, thereby frustrating the plans of many carriers to operate new routes to/from LIN. Such limitation is indeed a very se...