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Italian Developments

The Italian Competition Authority Investigates Alleged Margin Squeeze in the Italian Bulk SMS Market

by Emily Townsend | Nov 23, 2016 | Italian Developments, Monopolization/Abuse of Dominance

On 16 November 2016, the Italian Competition Authority (the “Authority”) opened a proceeding against Vodafone Italia and Telecom Italia for alleged abusive conducts in the bulk SMS market. According to the Authority, both companies would have abused their dominant position in the upstream market of SMS termination services through alleged abusive conducts aimed at excluding or limiting other competitors’ ability to compete in the downstream bulk SMS market.

According to the Authority, Vodafone Italia and Telecom Italia would have implemented a margin squeeze strategy in breach of Article 102 TFUE. In particular, the tariffs applied by Vodafone Italia and Telecom Italia in the upstream and downstream markets would leave an insufficient margin for any efficient competitor to cover their own specific costs for providing the bulk SMS service to customers, therefore preventing or restricting their access to the downstream market. The opening of the investigation follows a complaint filed with the Authority by a smaller competitor operating in the downstream bulk SMS market. The proceeding is scheduled to close on 30 November 2017.

Gabriele Giunta contributed to this post

Model Management Services, Italian Competition Authority Fines 8 Modelling Agencies and Their Trade Association for Price Fixing

by Emily Townsend | Nov 14, 2016 | French Developments, Italian Developments, Joint Ventures/Competitor Collaboration, Monopolization/Abuse of Dominance

On 11 November 2016, the Italian Competition Authority (the Authority) fined eight modelling agencies (B.M. S.r.l. – Brave, D’management Group S.r.l., Elite Model Management S.r.l., Enjoy S.r.l., Major Model Management S.r.l., Next Italy S.r.l., Why Not S.r.l. and Women Models S.p.a.) and their trade association (Assem) of € 4.5 million for alleged price collusion. According to the Authority, the modelling agencies would have agreed on the applicable prices on the market with the aim of avoiding any form of competition. In particular, the alleged price collusion would have concerned all the components of the prices applied to the major maisons and other clients (e.g., fees for models, wages for the modelling agencies and other additional costs). Furthermore, a practical role would have been played by the trade association, Assem, where the modelling agencies had held frequent meetings to develop the alleged concerted practice.

In calculating the fine, the Authority took into account that the alleged conduct took place between 2007 and 2015. Moreover, the Authority granted to Img Italy S.r.l. the full immunity from fines given that it revealed the existence of the alleged conduct. Regarding the European scenario, on 29 September 2016, the French Competition Authority fined the main trade association, SYNAM and 37 modelling agencies of €2.38 million for price fixing. In addition, there is a pending investigation of the Competition and Market Authority into alleged anti-competitive conducts in the model management services in United Kingdom.

Gabriele Giunta contributed to this blog post.

Misleading Terms & Conditions and Unfair Contract Terms: The Italian Competition Authority Opens Two Investigations against WhatsApp Inc.

by Emily Townsend | Nov 1, 2016 | Consumer Protection/Privacy, Italian Developments

On 28 October 2016, the Italian Competition Authority (the “Authority”) opened two investigations against WhatsApp Inc. for alleged unfair commercial practices. The first investigation by the Authority alleges that WhatsApp Inc. would have forced users to subscribe to new terms and conditions, in particular, a clause on the sharing of data with Facebook, by making users believe that, otherwise, they would have not be able to use the service. On another other side, the Authority opened a second investigation regarding other alleged unfair commercial practices. According to the Authority, WhatsApp Inc. would have included in its “Terms of Use” unfair contracts terms, including the exercise of the right of withdrawal granted exclusively to the company, the limitation on liability in favor of the company and the identification of the competent court for disputes resolution (currently only US Courts). Finally, the Authority also opened a consultation on these alleged unfair contract terms.

These investigations emerged after the Italian Data Protection Authority, on 27 September 2016, opened an investigation on WhatsApp’s new privacy policy and the data flow from WhatsApp Inc. to Facebook. In particular, the Italian Data Protection Authority asked WhatsApp Inc. to clarify certain aspects regarding the communication of data to Facebook, such as the typology of data communicated, the modality for the acquisition of consent for the communication and the measures adopted to ensure the compliance with data protection laws.

Gabriele Giunta contributed to this blog post.

Ad hoc Local Leniency Application Makes the Difference: The Italian Council of State Upholds the Administrative Court of Lazio Judgment on the Alleged International Road Freight Cartel

by Emily Townsend | Oct 26, 2016 | Cartel Enforcement, EC Developments, Italian Developments

On 20 October 2016, the Italian Council of State (the “Council of State”) upheld the judgment of the Administrative Court of Lazio (“TAR”) on the cartel in the sector of international road freight forwarding to and from Italy and confirmed the ranking applied in granting the reduction of the fine. According to the Council of State, in order to access the national leniency program, a company should provide the Authority with all necessary information and elements for the uncovering of the infringement, and should take into account that all the relevant information and elements provided to other authorities, in the context of other leniency application, will not be considered by the Authority. Therefore, companies should be careful and verify that each leniency application submitted is prepared ad hoc for each jurisdiction and is not capable of raising doubts regarding its scope. (more…)

Activation of Premium Services, The Italian Competition Authority Fines Telepass for Unfair Commercial Practices

by Emily Townsend | Oct 21, 2016 | Consumer Protection/Privacy, Italian Developments

On 20 October 2016, the Italian Competition Authority (the “Authority”) fined Telepass of EUR 200,000 for alleged unfair commercial practices. According to the Authority, Telepass would have activated a premium service (premium option extra) to consumers, who activated the simple premium option, without their consent. In particular, Telepass would have adopted a mechanism based on the tacit consent of the consumers, giving them an opt-out option, which consisted in the exercise of the right of withdrawal within 60 days.

The main feature of this decision is the application by the Authority of Article 65 of the Italian Consumers Code. This provision was introduced with Legislative Decree no. 21/2014, implementing Directive 2011/83/EU on consumer rights. According to Article 65, “before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for the trader’s main contractual obligation. If the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment”. The aim of this provision is to ban the use of the opt-out mechanism in favor of the use of the opt-in mechanism. Therefore, the Authority fined Telepass and prohibited the continuation of the alleged conduct.

Gabriele Giunta contributed to this blog post.

Pharmaceutical Antitrust in Italy: 32 Answers

by Martino Sforza | Sep 19, 2016 | Healthcare Antitrust, Italian Developments

This article, published in Getting the Deal Through, reviews the legislation that creates the pharmaceutical regulation framework in Italy, particularly with regard to mergers and acquisitions, anticompetitive conduct, product development and licensing agreements, and marketing agreements.

Read the full article.

Italian Competition Authority Updates Merger Control Turnover Thresholds

by Martino Sforza | Mar 15, 2016 | Italian Developments, Mergers & Acquisitions

The Italian Competition Authority has updated its merger control turnover thresholds. Effective 14 March 2016, Section 16(1) of Law no. 287 of 10 October 1990 requires prior notification of all mergers and acquisitions where both the following conditions are fulfilled:

Aggregate turnover in Italy of all undertakings involved is above € 495 million (revised under the terms of the same Section 16(1)); and
Aggregate turnover in Italy of the target company is above € 50 million (as revised)

Italy’s merger control thresholds are adjusted annually to take into account increases in the GDP deflator index. The updated thresholds will be published in the Competition Authority’s Bulletin once this increase in index is announced officially.

Intellectual Property and Antitrust: Italian Chapter

by Martino Sforza | Jan 19, 2016 | IP Antitrust, Italian Developments

McDermott has authored the Italian chapter of the 2016 edition of “Intellectual Property & Antitrust” published by Getting the Deal Through, a valuable work tool for legal practitioners dealing with intellectual property and competition law.

This chapter addresses the statutes for granting IP rights, enforcement options and remedies, as well as the interplay between Italian IP and competition legislation, jurisdiction of competition and IP agencies, cartels, price maintenance, abuse of dominance and remedies.

Read the full article here.

Italian Merger Control Thresholds – New Revisions

by Martino Sforza | Mar 16, 2015 | Italian Developments, Mergers & Acquisitions

The Italian Competition Authority has updated its merger control turnover thresholds. Effective today, 16 March 2015, Section 16(1) of Law no. 287 of 10 October 1990 requires prior notification of all mergers and acquisitions where both the following conditions are fulfilled:

Aggregate turnover in Italy of all undertakings involved is above EUR 492 million (revised under the terms of the same Section 16(1)); AND
Aggregate turnover in Italy of the target company is above EUR 49 million (as revised)

Italy’s merger control thresholds are adjusted annually to take into account increases in the GDP deflator index. The updated thresholds are published in the Competition Authority’s Bulletin once this increase in index is announced officially.

New Joint Protocol of the Italian Competition Authority and the Italian Tax Police

by Emily Townsend | Feb 20, 2015 | Italian Developments

The Italian Competition Authority and the Italian Tax Police (Guardia di Finanza) signed a new Joint Protocol, which provides increased mutual exchange of information and closer cooperation in the context of investigations for alleged breach of antitrust, unfair commercial practices and misleading advertising rules. The new Joint Protocol also sets out specific means of collaboration concerning the legality rating (i.e. a two-year, renewable certification for companies, issued by the Italian Competition Authority upon voluntary filing and designed to facilitate companies’ access to credit from banks and public financial support) and investigations on the supply of agrifood products, under Article 62 of the Law-Decree No 1 of 24 January 2012.

Click here to review the text of the Joint Protocol.

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