On May 28 2013 the Competition Authority published its decision to open antitrust proceedings against Italian railway operator Ferrovie dello Stato Italiane (FS) for possible abusive conduct under Article 102 of the Treaty on the Functioning of the European Union. On the same day, the authority conducted a dawn raid at the premises of FS.

FS owns the incumbent passenger services operator Trenitalia. Until April 2012, Trenitalia held a monopoly in high-speed passenger services in Italy. FS currently enjoys a legal monopoly over access to the Italian railway network through its subsidiary and infrastructure manager RFI. FS also manages access to passenger stations and maintenance facilities in Italy.

The opening of the investigation follows a complaint by Nuovo Trasporto Viaggiatori (NTV), a new entrant in the market for high-speed passenger services. The investigation was opened on the basis of the following allegations:

  • FS is squeezing NTV's margins by applying:
    • high charges for NTV to access to the railway network; and
    • low prices to consumers for high-speed passenger services.
  • FS is subsidising its high-speed passenger services through revenues from services for which it enjoys a monopoly.
  • FS has refused to grant NTV network access during peak hours and is discriminating in favour of Trenitalia when allocating railway infrastructure capacity.
  • FS has refused to grant NTV access to a maintenance facility in Milan.
  • FS has refused to grant NTV access to spaces for advertising and promoting commercial services in passenger stations. FS has also denied NTV suitable ticketing locations.
  • FS is discriminating against NTV by charging it higher prices than those charged to Trenitalia for advertising in passenger stations.
  • FS is operating passenger stations inefficiently with a view to making NTV's entry more difficult.

The authority believes that this alleged conduct could be aimed at impeding NTV's entry into the market and harming consumers.

The antitrust proceedings will conclude in July 2014. In the meantime, depending on the evidence both submitted by NTV and found during its inspection, the authority may impose interim measures on FS to ensure that NTV is granted equitable and non-discriminatory access to infrastructure.

Although RFI and Trenitalia are separate legal entities within FS, the authority's investigation will reveal whether their commercial operations are managed under a common strategy aimed at excluding NTV from the market and penalising NTV's customers.

While the authority's investigation is pending, and with a view to ensuring fair and non-discriminatory access to the Italian rail network and related services, the new government headed by Enrico Letta will consider proceeding with the appointment of the president and commissioners of an independent transport authority. The 10 so-called 'wise men' appointed by the president to recommend reforms, as well as the Organisation for Economic Cooperation and Development, have already urged the government to do so.

For further information on this topic please contact Andrea De Matteis at De Matteis Studio Legale by telephone (+39 06 983 784 11), fax (+39 06 699 212 35) or email (adematteis@dematteislex.com).

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