Antitrust: restrictive agreements and dominancei Significant casesEnel and Acea fined for abusive conduct hindering the liberalisation of the electricity market
With decisions dated 20 December 2018, the ICA found that the national incumbent Enel and the local supplier Acea abused their dominant positions in the Italian markets for the supply of electricity.
After the liberalisation of the Italian energy sector, electricity is sold on an open market at the prevailing prices. However, until 2020 residential customers and small enterprises may opt to buy electricity at regulated tariffs, set by the Italian energy authority. The ICA found that Enel and Acea used contact details and other information on customers in the regulated market – where they hold a dominant position – to address tailored commercial offers for the provision of services in the open market. The ICA held that this information was not available and could not be replicated by other competitors outside the regulated market.
In addition, Acea used detailed information on the competitors' market shares and market positions obtained from its branch active in the downstream market of electricity distribution. The ICA found that a similar competitive advantage could not be replicated by other non-integrated suppliers.
When calculating the fines, the ICA took into account the volume of sales achieved in both the regulated and open markets. However, since the abusive conduct only affected the open market, the ICA granted a substantial reduction on the final amount of the fines.ii Trends, developments and strategiesICA closes the investigation against Aspen for alleged non-compliance with its decision on excessive pricing
On 5 July 2018, the ICA closed an investigation against Aspen for alleged non-compliance with its previous decision finding an abuse of dominance in the market of oncological drugs.
In 2016, the ICA found that Aspen had adopted an aggressive negotiation strategy to force the Italian Medicines Agency (AIFA) to authorise excessive and unjustified price increases of between 300 and 1,500 per cent. Following Aspen's appeal, the ICA's decision was upheld by the TAR Lazio.
The ICA reopened proceedings on 1 March 2017, as it considered that Aspen was not complying with its previous decision. Proceedings were dismissed after a lengthy negotiation between Aspen and AIFA, resulting in a redefinition of drugs prices in line with the relevant sector-specific regulation and the retroactive application of those prices as from the date of ICA's initial decision.
An investigation against Aspen for excessive prices is still ongoing at the European level.iii Outlook
In 2018, the ICA initiated proceedings for alleged infringements of Article 102 TFEU affecting the markets for post-trading services, event ticketing, rail transport services, and diagnostic medical devices. The ICA is also scrutinising the compliance of Poste Italiane with its previous decision on the exclusionary rebates applied by the dominant postal services operator.