On 27th March 2015, the Italian Competition Authority (the "ICA") closed a one year and five month investigation into twenty-three companies (the "Companies") providing TV programme services.
The investigation started on 10th December 2013, the companies were accused of infringement of Article 2 of Law No. 287/1990, the Italian provision against anti-competitive agreements and the ICA decision confirmed the existence of a collective anti-competitive strategy among the Companies.
The Companies were accused of avoiding competing with each other for tenders set up by RAI-Radiotelevisione Italia S.p.A. ("RAI"), the Italian state-owned television incumbent. In particular, the ICA focused its attention on invitations made by the Companies from 15th July to 3rd October 2013. The most important period of the year for businesses operating in the TV programme services sector.
Such tenders were based on a "lowest bid mechanism", so that the invitation containing the lowest discount to a previous determined price won the tender.
The ICA found that in such a period the discounts were too similar to each other to be the result of true competition and held that the Companies had already decided among them the winner of the relevant tender before making invitations.
Through the abovementioned strategy, the Companies won tenders at far lower costs than if they were competing, to the detrimental of RAI and Italian taxpayers (RAI business activities are mainly based on Italian taxes).
The ICA found that such behavior was able to raise serious issues regarding its compatibility with Article 2 of Law No. 287/1990. In fact, any agreement not to compete with one another would fall within such a prohibition that impedes undertakings to allocate markets and customers.
It is of note that the ICA based its decision on circumstantial evidence rather than conclusive evidence, showing the low burden of proof the ICA needs in order to prosecute and fine.