On 6 June 2016, the Italian Administrative Court of Latium (the "IAC") sought to overturn a €793,829 collective fine previously imposed by the Italian Competition Authority (the "ICA") on 23 companies providing TV program services in Italy (the "Companies").
The fine was imposed on the grounds that the Companies had colluded in relation to their bids during a 2013 tender competition involving RAI-Radiotelevisione Italia S.p.A. ("RAI"), the Italian state-owned television incumbent.
Such tenders were based on a "lowest bid mechanism". The ICA held that the discounts were too similar to be the result of true competition and considered that the Companies had already decided amongst themselves who the tender winner should be, in violation of Article 2 of Law No. 287/1990 (the Italian provision against anti-competitive agreements).
However, the ICA decision was challenged by the Companies and the IAC has now opined that the conduct of the Companies should not be considered illegal on the grounds that the ICA had not taken into account the fact that RAI enjoyed a dominant position (a de facto monopoly) on the demand side. Indeed, RAI represented the only possible "client" of the TV program services and consequently it was able to decide the winner of the tender and/or the price; making the alleged collusion of the Companies irrelevant from a competition law point of view.
In light of the IAC opinion, an appeal of the decision before the Italian Supreme Administrative Court ("Consiglio di Stato") is anticipated.