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

Further, when a vendor cannot decline to offer a supplier’s product without inflicting
significant harm to its own business, this circumstance indicates that the supplier is in a
dominant position. In Assoviaggi/Alitalia, 399
the Competition Authority found that Alitalia’s
important position in the air transport services market made it an indispensable business
partner for travel agents. Because sales of Alitalia tickets accounted for a very large
proportion of Italian travel agencies’ total turnover, no travel agent could decline to offer
Alitalia tickets to its customers without incurring major damage to its business. Alitalia was
therefore found to be in a dominant position as a purchaser in the Italian market for air travel
agency services.
(b) Collective Dominance
The Competition Law prohibits the abuse “by one or more undertakings” of a
“dominant position.” 400
Although the Competition Authority has not yet applied the concept
of collective dominance in abuse of dominance cases, it is likely that it will follow EU
competition law principles if the issue is brought before it. As discussed above, the
Competition Authority has already applied the concept of “collective dominance” in merger
cases.
401
In Tele2/Tim-Vodafone-Wind, where the issue of a possible abuse of a collective
dominant position was one of the concerns that initially prompted the opening of the
investigation, the Competition Authority concluded that there was insufficient evidence to
demonstrate a collective abuse of dominant position held by Telecom Italia (TI), Vodafone,
and Wind on the wholesale market for the access to mobile network infrastructures. The
Competition Authority considered that their own networks sustained different maintenance
costs (the costs of Wind’s network were approximately 10 percent higher than those of TI
and Vodafone, because Wind had different transmission frequencies). This aspect eliminated
potential incentives to engage in collusive conduct. Since the involved undertakings were all
vertically integrated, the Competition Authority analyzed also the downstream retail market
of the final mobile services. It noticed that the market shares of TI, Vodafone, and Wind
were substantially different, being approximately 42 percent, 35 percent, and 15 percent,
respectively. The lack of symmetry between these operators would not facilitate a tacit
coordination. Finally, the Competition Authority considered that the growing market share
of the fourth operator, H3G (approximately 9 percent), had the effect of increasing the
competitiveness of the commercial strategies of the undertakings involved in the
proceedings.
2. Abuse Behavior - General Notions
399
Assoviaggi/Alitalia, 27 June 2001, n. A291, Bulletin 26/2001.
400
Competition Law, § 3.
401
Tele2/Tim-Vodafone-Wind, 24 May 2007, n. A357, Bulletin 20/2007 (concluding proceedings
against Vodafone); Tele2/Tim-Vodafone-Wind, 3 Aug. 2007, Bulletin 29/2007 (concluding
proceedings against TI and Wind).
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