On 15 May 2015, the Italian Supreme Administrative Court (“ISAC”) upheld the € 103.7 million fine imposed on Telecom Italia S.p.A. (“Telecom”) by the Italian Competition Authority (“ICA”) on 9th May 2013 for violating Article 102 TFEU, the prohibition against the abuse of dominance.
The ICA found that Telecom abused its dominant position by denying access to the other licensed operators (“OLOs”) from Telecom’s network and wholesale broadband service, without objective reason.
The ISAC has now confirmed that Telecom engaged in an unlawful refusal to supply practice, by discriminating between OLOs and its internal divisions, which, unlike the OLOs, always obtained access to Telecom’s network and wholesale broadband service.
Further, the ISAC found that -- as Telecom was in a dominant position in the wholesale market -- it should provide access to its network on terms and conditions that, according to EU competition law, had to be fair, reasonable and non-discriminatory (so-called “FRAND terms”).
The ISAC decision to confirm the high fine imposed on Telecom shows an increasing regulatory attention to the telecommunications market, in particular where a former State-owned company is in a dominant position. This decision shows that dominant undertakings should operate responsibly and mind the possible detrimental effects of their conduct on vulnerable competitors.