competitionlaw

An agreement concluded by two port terminal operators, pursuant a mutual exchange of shares, has been alleged by the Italian Competition Authority (ICA) to constitute a concentration for the purpose of Act 2897/1990. The ICA has then opened an investigation into the agreement to verify whether the party has infringed the obligation to notify a concentration to the ICA before implementing it (Case C10086, PSA Europe-Gruppo Investimenti Portuali/Seber-Sinport ). By a communication received by the ICA on 28 July 2008, the parties informed that by a contract signed on 15 July: • PSA Europe (PSA), which fully owned the terminal operator Sinport, bought a 40% stake in Seber, a terminal operator until then fully owned by Gruppo Investimenti Portuali or GIP; • GIP, in turn, bought a 40% stake in Seber. The parties have declared that the transaction has been consummated on 28 July 2008, by result of which now PSA has a 60% and 40% stake in Sinport and Seber, respectively and GIP has a 60% and...

In its advocatory capacity the Italian Competition Authority has released an opinion with critical remarks at recently enacted laws and drafts now being examined by the Italian Parliament on the regulatory regime for rail transport, because of the feared negative impacts they may have on the competition in this sector (see AS528, Definizione del servizio universale nel trasporto ferroviario e affidamento dei conseguenti oneri di servizio - Definition of universal service with regard to rail transport and assignment of ensuing public service obligations ). Competition in rail transport markets is undermined by an opaque not clear-cut distinction between free- market services and universal services, and by the direct assignment of the latter. Regional passenger services to be carried out under public contracts signed and funded by regions fall within the concept of universal service. Article 23-bis of the act no. 112/2008 lays down that the general way of awarding a public service c...

The story is well known. The Italian Government enacted the decree 134/2008 with a view to immunize from merger control, which would have been almost certainly resulted in a prohibition decision, the Alitalia-AirOne/CAI concentration, necessary to rescue the ailing Italian flag carrier. The decree restrained the regulatory powers the Italian Competition Authority (ICA) with regard to the concentration to the effect that it could only impose on the merging parties behavioural remedies to avert the risk of unfair pricing and contractual terms as it did by the decision taken in December 2008. One competitor of the merging parties impugned the decision before the regional administrative court of Lazio (Tar Lazio). All the pleas submitted by the applicant have been dismissed by the Tar Lazio except for that relating to the alleged infringement of Articles 3 and 41 of the Italian Constitution. Finding for the applicant, the Tar Lazio says that the decree 134/2008 may have discriminated again...

On 14 May 2009, the Italian Competition Authority or ICA has opened an investigation into whether the merging parties to BancaIntesa/San Paolo IMI ( case C8027, Banca Intesa/SanPaolo IMI, Boll.49/2006) complied with the some of the conditions imposed by the ICA decision to conditionally authorize the transaction cleared. Since the merger was found to be likely to create or strengthen a dominant position in many markets for banking and financial services, the ICA imposed a set of remedies to address the ensuing competition problems, among which transferring of 645 branches to an independent buyer the merging parties identified in Crédit Agricole . Being Crédit Agricole linked to Banca Intesa by structural, financial and personal links, it did not meet the fundamental requirement of independence of the merging parties to purchase the assets to be divested. To overcome this problem, the AGCM prescribed a set of additional conditions the merging parties had to comply with in trans...

The limits within which the companies created by public entities for the supply of goods or services can also supply public entities other than the incorporating ones are long debated by the Italian legal community. A recent judgment by the regional administrative court of Puglia (Tar Puglia) contributes to the debate by clarifying the scope of application of the ban on extramoenia activities the so-called Bersani Act of 2006 imposes on certain public and semi-public companies (Tar Puglia, chamber of Lecce, case n. 908/2009, TRT Trasporti e Territorio/Autorità Portuale di Brindisi ). Article 13 of the Bersani Act applies to fully or partially publicly owned companies incorporated or participated by regional or local public entities for the provision of goods and services, which are necessary for the institutional activities of the public entities, except for local public services and statutorily enlisted cases regarding the carrying out of outsourced administrative activities. The com...

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...

The French competition regulator, the Autorité de la Concurrence (AdC), has decided to examine and give an opinion on the decision of SNCF, the French incumbent railway undertaking, to reorganize its rail stations management business ( AdC, decision 09-SOA, Saisine d’office pour avis du 18 mai 2009 relatif à une saisine d'office pour avis dans le secteur du transport public terrestre de voyageurs, http://www.autoritedelaconcurrence.fr/pdf/avis/09soa01.pdf. ) The legal basis of the AdC decision can be found in the new Article 462-d of the French code de commerce which empowers the competition regulator to give an opinion on any competition issue and recommend the measures necessary to strengthen the competitive structure of markets. The SNCF engaged in the reorganization of its business division for rail stations management following a recommendation made in a survey “La gare contemporaine” carried out by the French Parliament. This document deals with which competition rules that a...