Competition Law in Italy The first 20 years of law and practice

Once the Competition Authority has defined the relevant market, it must analyze
whether the undertaking has a dominant position in that market.
In line with the well-settled case law of the EU Courts, 385
a dominant position is:
“a position of economic strength enjoyed by an undertaking which enables it
to prevent effective competition being maintained on the relevant market by
affording it the power to behave to an appreciable extent independently of its
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competitors , its customers and ultimately of the consumers.”
Additionally, the Competition Authority has found that “such a position does not
preclude some competition, which does occur where there is a monopoly or a
quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least
to have an appreciable influence on, the conditions under which that competition will
develop, and in any case to act largely in disregard of it so long as such conduct does not
387
operate to its detriment.”
388
Finally, consistent with EU practice, the Competition Authority has held that a
dominant position derives from a combination of factors that, taken separately, are not
necessarily determinative. 389
Therefore, the Competition Authority carries out a
comprehensive survey of the competitive conditions on the relevant market to determine
whether an undertaking enjoys a dominant position.
In determining whether a firm enjoys market power and holds a dominant position, the
following factors are taken into consideration: market shares, structure of the market,
existence of barriers to entry, characteristics of the product, level of production, conduct,
and performance of the undertaking concerned. Market share is a very important element in
establishing dominance. An insignificant market share (7 to 8 percent) is an element which
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is contrary to the existence of a dominant position. The Competition Authority generally
does, however, take into account other factors to determine whether dominance exists.
Further, the Competition Authority, in accordance with the principles of EU competition
law, has found that a decreasing market share does not necessarily negate the findings of the
existence of a dominant position. 391
385
Case C-85/76, Hoffman La Roche v. Commission, 1979 E.C.R. 461; Case C-27/76, United Brands
v. Commission, 1978 E.C.R. 207. Since the beginning of its activity, the Competition Authority has
made reference to this notion in all its decisions concerning abuse of dominant position.
386
See, e.g., Marinzulich/Tirrenia, 10 Apr. 1992, n. A13, Bulletin 7/1992; Apca/Compag, 6 July 1992,
n. A24, Bulletin 13/1992.
387
Id.
388
In United Brands, 1978, E.C.R. 207, the ECJ held that “[i]n general a dominant position derives
from a combination of several factors which, taken separately, are not necessarily determinative. In
order to find out that an undertaking [holds] a dominant position on the relevant market it is
necessary first of all to examine its structure and then the situation in the said market as far as
competition is concerned.”
389
See, e.g., Marinzulich/Tirrenia, 10 Apr. 1992, n. A13, Bulletin 7/1992; Consorzio Risposta/Ente
Poste Italiane, 17 Dec. 1998, n. A218, Bulletin 51/1998.
390
M.Y.C./S.I.A.E., 27 May 1992, n. A19, Bulletin 10/1992.
391
Tekal/Italcementi, 9 Feb. 1995, n. A76, Bulletin 6/1995.
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