competitionlaw

In the recent judgment in the case T-79/12, Cisco Systems and Messagenet v Commission , the EU General Court (GC) dealt with the issue of the relevance of the market shares to ascertain the competition effects of merger operations in dynamic markets. Under the EU merger control regime, the market shares enjoyed by the merging parties are generally among the most important factors to be considered when assessing the competition impact of a notified transaction. According to the decisional practice of the European Commission, when the combined market shares of the parties are more than 50% the merged entity is presumed to have a dominant position in the relevant markets. If it is the case, concerns arise about whether the merger may restrain competition. Yet market shares are not always a correct proxy for the market power of the merged entity as reflected by the decisions of the Commission by which in some cases it cleared the notified merger in spite of the high market shares of the ...

The European Commission has recently ruled that some of the support measures granted by the regional authorities of Sardinia (RAS) to the ferry operator Saremar amounted to illegal state aid and then ordered recover of such measures. In short, Saremar had to pay back the total amount of € 10,8 million. More specifically, the capital injection for an amount of € 6,1 million received by Saremar breached state aid rules because it did comply with the principle of market investor and with the requirements for restructuring aid set out in the Commission Guidelines on state aid for the rescue and restructuring of companies in difficulty. Also the € 10 million compensation paid Saremar for providing two links in 2011 and 2012 between Sardinia and Continental Italy was illegal as it infringed the EU rules on services of general economic interest. The act by which those services were entrusted to Saremar did not set out the compensation mechanism and the public services obligation on the r...

By a decision made on 20 December 2013 the Italian Competition Authority (ICA) has closed the monitoring proceeding opened in the CIN/Tirrenia case ( Case C11613B, Compagnia Italian di Navigazione/Ramo Aziendadi Tirrenia di Navigazione) into whether two ferry operators, Moby and CIN, complied with the commitments imposed by the ICA for the approval of the transaction by which Moby and CIN acquired the control of their competitor, Tirrenia. In order to resolve the competition problems that the merger was found to be likely to result in the ICA imposed on the parties a number of behavioural remedies. Such remedies included, among other things, i) the commitment to terminate all code sharing agreements by the deadline of 28 June 2012 and ii) the commitment to sell tickets for the problematic routes for the Summer 2012 season at such prices to keep unchanged the average revenue per single ticket obtained by Moby in 2009, save for the increases necessary to compensate the effects coming...

By the decision made on 10 December 2013, pursuant to Article 2 of the Italian Competition Act n. 287/190, in the case I771 Rai/Post-produzione TV the Italian Competition Authority (ICA) has opened an investigation into an allegedly anticompetitive agreement affecting the market for the supplying of  post-production services to the complainant, RAI. Under the Italian legal system RAI, the national public broadcaster, has to select its suppliers through competitive procedures to which only qualified suppliers meeting certain requirements are invited to particiapte. By a complaint lodged with the ICA, RAI reported that the procedures it called for over the period August-September 2013 to select the suppliers of post-production services were influenced by a market-sharing agreement entered by the suppliers. The ICA then started an investigation against 22 providers of post-production services. In the ICA view the elements collected over the preliminary investigations corroborated...

Following an agreement concluded in 1961 with the manager of the airports of Milan, SEA, and renewed many times ATA was the holder of an exclusive concession to manage the centralized infrastructure at the airport of Milan of Linate (LIN). In particular, ATA was also the manager of the terminal for general aviation. SEA blamed ATA for failing to timely complete a number of facilities agreed in the latest concession agreement, though it did not terminate it. As Sapam, the company controlling ATA went into receivership, the receiver called for a competitive procedure to select to whom sell the 98% share capital of ATA. Cedicor, a Uruguay-based group, and SEA bid for ATA. The winning bid was that made by Cedicor. One day before the receiver officially communicated to the bidders the exit of the procedure in July 2013 SEA sent a letter to Cedicor and its advisor to communicate its intention to start proceedings to obtain the termination of the concession agreement. One month later, SEA c...

In the Enervit case (Case I718, Enervit – Contratti di distribuzione) the Italian Competition Authority (ICA) has opened an Article 101 TFEU investigation against into allegedly anticompetitive vertical agreements. The holder of a pharmacy and of an on-line sale web site reported to the ICA a number of Enervit vertical arrangements as for the distribution of its food supplement products. The markets affected by such arrangements were the markets for food supplements for athletes as well as the markets for food supplements for fitness and well-being in each of which Enervit had a 15-20% share. The ICA applied the principles in the Guidelines on Vertical Restraints of the European Commission to assess the distribution agreement entered by Enervit with the complainant. The agreement provided for a maximum discount to be applied on Enervit products. The producer also granted a further 10/15% discounts to retailer that applied the minimum resale prices indicated in the pricing list. Ac...

By a decision made on 22 October 2013 Italian Competition Authority (ICA) has opened an Artice 101 TFEU investigation into an alleged resale price maintenance agreement (RPM) in the case I766 Inverter Solar edEolici – Imposizione Prezzi Minimi (Inverter) . Power-One Italy (POI) is part of a group trading worldwide in the markets for the production and commercialization of photovoltaic and aeolian inverters. A report lodged with the ICA alleged that POI imposed a RPM on the dealers that belonged to its distribution network. The allegation was based on two documents attached to the report. First, the letter of 17 October 2012 having as object “ Minimum selling price”. By this letter the vice-president of POI reminded distributors, resellers and partners of the fact that since January 2012 a minimum reselling price system was introduced in all our price lists. The  letter also requested dealers to comply with the RPM obligation, stressing that POI would terminate the contract wi...