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

that the Competition Authority had applied the incorrect evidentiary standard by failing to
establish a “solid and convincing” body of evidence. 439
According to the TAR, evidence of a
single refusal to supply by a subsidiary of one of the three groups involved in the
investigation was insufficient, because a refusal to supply by a dominant firm is abusive
only if such conduct is repeated and generalized and is thus capable of clearly proving the
anticompetitive intent of the undertaking concerned.
(ii) Refusal to Grant Access to Essential Facility
Consistent with the principles of EU competition law, the Competition Authority
defines an essential facility as “a facility or an infrastructure which is essential for reaching
customers and/or enabling competitors to carry on their business, and which cannot be
replicated by any reasonable means.” 440 An undertaking that owns or controls such
infrastructure and refuses to grant access to it, or grants access to it at discriminatory terms,
without an objective justification, infringes Section 3 of the Competition Law. 441 To be
characterized as an essential facility, access to the facility must be essential to operate in the
relevant market Additionally, there cannot be viable alternatives available or the possibility
of duplication due to technical, legislative, and economic constraints. 442
Refusal to grant access to an essential facility is not unlawful if the Competition
Authority finds that there is an objective justification for the refusal. A refusal to grant
access might be justified, for example, when the owner of the facility does not have enough
capacity (capacity saturation), when the counterpart is insolvent or does not respect the
contractual conditions, or when the undertaking requesting access does not have the
technical or security requirements needed for it to have a secure access to the infrastructure.
Conversely, lack of an unsatisfied demand in the downstream market is not an objective
justification for such refusal.
In Gestione e utilizzo della capacità di rigassificazione, 443
the Competition Authority
opened proceedings against Eni in connection with an alleged violation of Article 102 TFEU
439
Otis v. Autorità Garante della Concorrenza e del Mercato, 21 Feb. 2001, n. 1371/2001 (Trib. ammin.
reg.).
440
SNAM/Tariffe di vettoriamento, 28 Feb. 1999, n. A221, Bulletin 8/1999.
441
3C Communications, 4 Mar. 1992, n. A5, Bulletin 5/1992; IBAR/Aeroporti Roma, 17 Mar. 1993, n.
A11, Bulletin 6/1993; IBAR/SEA, 16 Mar. 1994, n. A56, Bulletin 11/1994; Telsystem/Sip, 10 Jan.
1995, n. A71, Bulletin 1-2/1995; De Montis Catering/Aeroporti Roma, 2 Mar. 1995, n. A61, Bulletin
91/1995; Associazione Consumatori Utenti/Alitalia, 11 Nov. 1996, n. A102, Bulletin 45/1996;
Albacom/Telecom Italia Circuiti Dedicati, 30 Oct. 1997, n. A178, Bulletin 4/1997.
442
SNAM/Tariffe di vettoriamento, 28 Feb. 1999, n. A221, Bulletin 8/1999.
443
Gestione ed utilizzo della capacità di rigassificazione, 6 Mar. 2007, n. A371, Bulletin 8/2007. The
Panigaglia plant is the sole Italian terminal where LNG can be regasified. The regasification service
consists of the receipt, unloading, storage, and reconversion of LNG into natural gas, which is
successively introduced in the national pipelines. The markets involved were indeed the markets for
access to the continuous regasification capacity and for the supply of natural gas delivered in Italy.
According to the Competition Authority, regasification terminals belong to a separate market from
pipelines; for this reason, GNL Italia was a de facto monopolist on this market.
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