On 17th July 2014, the Italian Competition Authority (ICA) opened an in-depth investigation into twelve companies (the Accused Companies) providing vending services in Italy for alleged infringements of Article 101 TFEU, the prohibition of anti-competitive agreements. The Accused Companies supply, install and manage vending machines for hot and cold drinks, snacks and food.
The investigation stemmed from an anonymous complainant referring to two telephone conversations between the latter and the call center operators of one of the Accused Companies. The ICA found that from these conversations, an agreement dividing up customers could be found among the Accused Companies under which clients of one of the Accused Companies cannot receive services or products by another companies involved.
In particular, the complainant was not able to benefit from a commercial offer since it declared to already be client of one of the Accused Companies.
Therefore, the ICA held that the Accused Companies tried to avoid competing with each other and alleged that the Accused Companies had decided to illegally assign customers among them.
Through this strategy, the Accused Companies cause obvious damage to customers in terms of higher prices resulting from the complete lack of competition.
Further, the ICA found that the alleged anti-competitive agreement can also affect the intraCommunity market as the agreement regards all the Italian territory, which is an important part of the European Union market, given that the most important Italian undertakings active in the vending services are involved.
If proven, the conduct raises serious potential issues regarding its compatibility with European Union competition rules and specifically with Article 101 TFEU. In fact, any agreement not to compete with competitors would fall within the prohibition in Article 101 TFEU that expressly forbids the assignment of customers.
In our view, the investigation and scrutiny is welcome. If wrongdoing is found, the ICA investigation and subsequent enforcement action could be considered a high profile deterrent against the assignment of customers. However, the alleged wrongdoing is not proven at this stage and the investigation continues.