For the first time, by a resolution published on 12 December 2016, the Italian Competition Authority (“ICA”) has enforced its powers against a form of the abuse of economic dependence in the case of repeated infringement of the Italian applicable law on payment terms (Article 9, para 3-bis, Law no. 192/1998, as amended by Law no. 180/2011).
Without prejudice to application of the provision of the Italian Competition Law on the abuse of dominant position (i.e. Article 3 Law no. 287/90, which mirrors Art. 102 TFEU), the ICA may also investigate an abuse of economic dependence found within the context of a contractual relationship to the extent that such abuse is relevant for the protection of competition and the market (Article 11, Law no. 57/2001). In particular, an abuse of economic dependence is triggered when a company is able to determine, in its business relations with another company, an excessive imbalance of rights and obligations in favor of the former. Economic dependence is assessed taking into account the actual possibility for the counterparty to find satisfactory alternatives on the market (Article 9, Law no. 192/1998).
The ICA’s findings
In particular, the ICA, upon a complaint submitted by a trade association, has found that the Italian multi-utility company Hera s.p.a. has repeatedly and diffusely infringed the applicable law on late payments in commercial transactions with regard to the business relations occurred with its gas meters suppliers: more specifically, the ICA has ascertained that Heras’ payments to its suppliers were systematically made after 120 calendar days instead of being made within the 60 calendar days term foreseen by Directive 2011/7/UE (namely, Legislative Decree no. 231/2002 as amended by Legislative Decree no. 192/2012 implementing Directive 2011/7/UE on combating late payment in commercial transactions).
Remedies rejected and exceptional reduction of the fine from the original 3.2 million €
Although Hera submitted a remedies proposal having the purpose to avoid the fine, the ICA has rejected the proposal after having evaluated the remedies as not appropriate to remove the effects of Hera’s illicit conduct and therefore has fined Hera with € 800,000. The amount of the fine has been exceptionally reduced (compared to the original amount of € 3.2 million) in light of the fact that this was the first investigation for the ICA with regard to the allegation of an abuse of economic dependence through late payments.
The ICA pointed out that this type of investigations will be increasingly important and relevant in the future enforcement agenda and has underlined that timely payments are of foremost importance for the creation of a competitive environment among enterprises also in light of the recent EU Commission Report on the implementation of Directive 2011/7/UE on combating late payment in commercial transactions (implemented by Legislative Decree no. 192/2012) that has recommended Member States to “maintain the issue of late payment high on the political agenda by continuing to raise awareness of the topic at national level”.