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Higher Mitigation of Fines Due to Prompt Implementation of Measures Addressing Authority’s Concerns in Unfair Commercial Practices Investigations

In a decision published on 10 February 2017, imposing Samsung Electronics Italia S.p.A. (“Samsung”) fines totaling € 3.1 million for alleged aggressive unfair commercial practices, the Italian Competition Authority (the “Authority”) confirmed that the prompt implementation of measures aimed at addressing its concerns regarding alleged unfair commercial practices leads to a higher mitigation of the fine.

According to the Authority, Samsung would have: (i) provided consumers with incomplete and misleading information on the terms and conditions of the promotions; and (ii) forced consumers to provide their consent to the processing of their personal data for marketing purposes, as a condition to obtain the premiums related to the purchase of the product. In setting the amount of the fine, the Authority took into account the measures implemented by Samsung before and after the beginning of the proceeding. Indeed, in relation to the second allegation, the Authority considered the importance of the measures implemented before the opening of the proceeding and granted a significant reduction of the fine (25%). In relation to the first conduct, the Authority granted a lower reduction of the fine (15%), given that the measures aimed at addressing its concerns were adopted only after the opening of the investigation.

On 4 May 2016, the Authority opened the investigation following several complaints received from consumers and consumers’ associations. In particular, Samsung would have used claims aimed at promoting prize-giving events without providing consumers with all relevant information and using a font style, which would have been too small or difficult to read. The Authority also considered that the access to promotions’ rules in each point of sales or through the website was not sufficient in order to overcome this lack of information. Furthermore, as mentioned above, according to the Authority, Samsung would have forced consumers to provide their consent to the processing of personal data for purposes other than the ones necessary for obtaining the premium. During the proceeding, Samsung voluntarily submitted and implemented measures aimed at improving consumers’ awareness on the terms and conditions of the promotions. These measures included simplification of consumers’ involvement in prize-giving events, verification of consumers’ satisfaction, improvement of systems aimed at monitoring whether employees would effectively provide all the relevant information to consumers, streamline procedures for obtaining the premium, a more efficient handling of consumers’ complaints. Furthermore, Samsung also submitted that it had implemented other measures aimed at addressing the concerns related to the provision of the customers’ consent for the processing of their personal data. The Authority fined Samsung of € 3.1 million for alleged unfair commercial practices consisting of aggressive and misleading promotions related to the purchase of smartphone, smart TV and other Samsung’s products. However, in the calculation of the fine, the Authority acknowledged the relevance of the above mentioned measures granting a significant reduction of the applicable fine.

Gabriele Giunta (Trainee) contributed to this blog post.




An Increased Cooperation in Enforcement Activity: The Italian Competition Authority and the Italian Medicines Agency Sign a Memorandum of Understanding

On 19 January 2017, the Italian Competition Authority (AGCM) and the Italian Medicines Agency (AIFA) signed a memorandum of understanding in order to increase enforcement in the pharmaceutical sector by strengthening their investigation powers and facilitating the exchange of data. Under the agreement, AGCM and AIFA will inform each other on cases concerning alleged violations of rules enforced by one of them. In particular, in case of negotiations carried out by AIFA with pharmaceutical companies on the applicable drugs prices, or whether counterfeiting cases regarding pharmaceutical products emerge during an investigation. Furthermore, the authorities will cooperate in their advocacy activities and in carrying out sector enquiries. Finally, the authorities will exchange information and data on matters of common interest.

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Finally Implemented! The Italian Council of Ministers Approves a Legislative Decree Implementing the EU Antitrust Damages Directive

On 14 January 2017, the Italian Council of Ministers approved the Legislative Decree implementing Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the “Directive”). The final version of the Legislative Decree has not been published yet on the Official Journal. However, the key points emerging from it include:

  1. A strengthened mechanism of evidence disclosure in actions for damages related to alleged infringements of competition rules. In fact, the judge will have the power to request the defendant or a third party, including the Italian Competition Authority (the “Authority”), to disclose relevant evidence which lies in their control.
  2. The extent to which Italian courts will be able to rely on decisions of the Italian Competition Authority or other national competition authorities. For instance, an infringement of competition law ascertained by a decision of the Italian Competition Authority (or appeal judgment), which is not subject to further means of appeal, will be deemed to be indisputably established for the purposes of an action for damages brought before the national courts under Article 101 or 102 TFEU or under national competition law.
  3. The rules applicable to limitation periods for bringing actions for damages, as well as how Italian courts shall assess the joint and several liabilities of companies which are found to have infringed competition rules, and how they shall quantify the harm suffered as a consequence of the alleged infringements.
  4. The business sections of the courts of Milan, Rome and Naples, identified as the only competent courts for such actions for damages, including class actions.

According to the established Italian case-law, in case of actions for damages regarding alleged violations of competition rules, the judge shall use all available investigation means in order to address the obstacles faced by the claimant to access the relevant evidence in antitrust cases, and therefore apply broadly the rules on the disclosure of evidence and information requests (Corte Suprema di Cassazione, judgment no. 11564 of 4 June 2015).

On 26 November 2014, the European Parliament and the Council of the European Union adopted the Directive, which entered into force 26 December 2014, setting 27 December 2016, as the deadline for its transposition at national level. On 27 October 2016, the Italian Council of Ministers approved an initial proposal for a Legislative Decree implementing the Directive and sent it to the relevant commissions of the Italian Parliament for their mandatory (non-binding) opinions. The Legislative Decree was therefore finally approved in the Council of Ministers’ meeting of 14 January 2017. Although it is difficult to predict the likely impact of the Legislative Decree, it will definitely provide a more certain legislative framework for companies and consumers interested in claiming damages on the basis of alleged antitrust infringements.

Gabriele Giunta contributed to this post. 




Unfair Commercial Practices – The Italian Competition Authority and The Italian Communication Authority Sign a Memorandum of Understanding

On 13 January 2017, the Italian Competition Authority (AGCM) and the Italian Communication Authority (AGCOM) signed a memorandum of understanding concerning several aspects of their cooperation in the application of consumers’ protection rules. Under the memorandum of understanding, in the case of consumers’ protection matters, which potentially involve both authorities, there will be coordinated actions, even during the preliminary investigation phase. Furthermore, AGCM will inform AGCOM on cases concerning the violations of rules enforced by AGCOM, which will do the same in case of hypothesis of unfair commercial practices in the electronic communications sector. The authorities agreed also to set up a standing working group in order to promote the debate on consumer protection issues. Finally, the agreement provides rules on the exchange of information between the authorities on investigations.

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Sale of Serie A Broadcasting Rights, the Regional Administrative Court of Lazio Annuls the Decision of the Italian Competition Authority

On 23 December 2016, the Regional Administrative Court of Lazio (the TAR) annulled the decision of the Italian Competition Authority (the Authority), against Sky Italia S.r.l. (Sky); Reti Televisive Italiane S.p.A. (and its subsidiary Mediaset Premium S.p.A.) (RTI); the Italian Football League (Lega Calcio); and Infront Italy S.r.l.(Infront), concerning an alleged violation of Article 101 Treaty on the Functioning of the European Union  (TFEU) on the sale of broadcasting rights of the Italian Premier League “Serie A” for the years 2015–2018. According to the TAR, the Authority failed to observe the mandatory time-limit to contest the alleged conduct. The TAR highlighted that the Authority erred in considering the alleged conduct as a market sharing agreement. Furthermore, the Authority also erred in considering the agreement as a restriction “by object.” In particular,, according to TAR, the Authority has not carried out a thorough analysis of the relevant market and has not followed the recent European case law, according to which “in order to determine whether an agreement between undertakings reveals a sufficient degree of harm that it may be considered a ‘restriction of competition by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part” (see Court of Justice of the European Union, case C-373/14 P, Toshiba Corporation v European Commission, 20 January 2016).

The broadcasting rights for the Italian Premier League “Serie A” are allocated, according to Legislative Decree No. 9 of 9 January 2008, through a tender issued by the Lega Calcio. In the 2014 tender, regarding the broadcasting rights for the years 2015–2018, Sky submitted the best bids for the two most relevant lots (A and B). However, considering the conditional bids presented by RTI and the possible creation of a dominant position in the market, the Lega Calcio, advised also by Infront, decided to allocate the relevant lots between Sky (lot A) and RTI (lots B and D). Then, after having received the authorization of both the Authority and the Italian Communication Authority, RTI granted to Sky the sub license of lot D. However, on 13 May 2015, the Authority opened an investigation on the decision-making process for the allocation of the broadcasting rights, and with decision of 19 April 2016, fined RTI of € 51,4 million, Infront of € 9,04 million, Sky of € 4 million and the Lega Calcio of approximately € 2 million for alleged market sharing in breach of Article 101 TFEU.

Gabriele Giunta contributed to this post.




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

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.

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.




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

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.




Italian Competition Authority Updates Merger Control Turnover Thresholds

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.




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