competitionlaw

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...

According to the Italian Competition Authority (ICA), this may be so. Following a complaint filed by a supermarket chain, Esselunga, th e Italian Competition Authority (ICA) has opened investigations into two foreclosing conducts affecting retail markets . In the first case (A437) the ICA considered the conduct carried out by UniCoop Tirreno (UCT). UCT has a dominant position in the market for supermarkets and hypermarkets in the Tuscany province of Livorno. Here there exists high entry barriers due to the dearth of land available for the construction of shopping centers. A further entry barrier is the need for an obtain an authorization from the public administration before taking up commercial activities. The Municipality of Livorno had awarded a developer an authorization to build a supermarket. Esselunga offered to buy the piece of land where the construction of the supermarket was authorized. Yet the developer sold the land to UCT, though its offer was lower than that submitt...

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: -...

The French Competition Authority -Autoritè de la Concurrence- or FCA has recently published its opinion on competition effects that category management arrangements are expected to have ( Avis n. 10-A-25 of 7 December 2010 ) . Apart from the recent European Commission’s Guidelines on Vertical Restraints, which contains a brief section on competition impact of category management, this is the first time that a European competition regulator deals at length with the issue of the implications that reliance on this marketing tool may have on competition in retail markets. The opinion of the FCA, however, must be read with the caveat that its assessment was focused, logically, on the likely effects of category management in the French retail markets. In this regard, it notes that within the category management arrangement used in the French market retailers keep the last word on their marketing policies, while the captain only gives non-binding recommendations to them. Importantly, this t...

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...

The Italian Competition Authority or AGCM has condemned 26 pasta makers and two industry associations for having put in place price-fixing practices in the market for durum semolina pasta. The cartel was aimed at coordinating increases in selling in prices of pasta the cartelists applied to supermarket chains over the October 2006-March 2008 period. In this way, the pasta producers tried to protect their margins which were squeezed between the buyer power of supermarket chains and the rising prices of ingredients to make pasta. The most important finding of the AGCM decision was that the supermarket chains had a relevant buyer power that they could exert with regard to any pasta producers, regardless of their size. And, accordingly, the only way for pasta manufacturers to counter the buyer power of supermarket chains was to develop a common pricing policy and jointly implement it. Though, so the AGCM argument run, the more efficient pasta producers could react to increasing production...

Following the receipt of a complaint, the Italian Competition Authority (ICA) has opened an investigation into an alleged cartel affecting the market for shipping agency’ services (Case I733, Servizi di Agenzia Marittima) . On the basis of the facts set out in the complaint, the ICA alleged that the parties had implemented the cartel in a number of phases. First, through the meetings of a first professional association, Commissione Portuale di Assagenti, which was set up by shipping agencies operating in the port of Genoa, the parties agreed on the fees to charge for their services. The cartelized fees were the Manual Documentation Fees and the Open Documentation Fees. The parties recommended which fees charge on customers within the maximum and the minimum set by ministerial decrees. Second, Assagenti was given the task to convince another professional association, Spediporto, which was set up by couriers and shippers active at the port of Genoa, to apply the recommended fee...