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

used similar exclusive distribution mechanisms. The Competition Authority was thus
concerned in particular to verify if there was effectively a foreclosure of the market through
the exclusive networks of outlets so as to impede the possible entry of different competing
brands. In this case, the Competition Authority determined that the tied points of sale
amounted to approximately 57 percent of the entire market, a number that was declining due
to other market trends. Moreover, prior to the conclusion of the Competition Authority’s
investigations, Sagit undertook to reduce its exclusive sales points to not more than 50
percent of its total sales points and introduced other changes to its agreements to reduce
anticompetitive effects. In parallel to the negative clearance decision (i.e., the vertical
agreement did not violate the Competition Law) the Competition Authority also found that
Sagit did not have a dominant position in the relevant market.
Smaller suppliers of ice cream appealed the decision before the TAR. 491 The TAR held
that the exclusivity arrangements did not infringe the Competition Law in light of the share
of the market that was tied by the exclusivity provisions and the fact that Sagit had
communicated that it would not apply the exclusivity provision to more than 50 percent of
its served outlets. In the end, on final appeal the Supreme Administrative Court partially
annulled the decision because the Competition Authority did not provided a complete
reasoning in relation to its statement that Sagit did not have a dominant position on the
relevant market. 492
The last decision of some relevance clearing a vertical agreement following a
notification was Sony Music Entertainment Italy/Rivenditori.
133
493
This decision concerned an
agreement between Sony and a number of retailers and wholesalers, according to which
Sony suggested a lower resale price applicable for two-month periods accompanied by
lower wholesale prices available on the condition of purchases of certain minimum volumes
of products. Following a notification on March 6, 2003, on the eve of the entry into force of
Regulation (EC) No. 1/2003, the Competition Authority issued a “negative clearance” and
found that the notified agreement was not incompatible with Section 2 of the Competition
law.
2. Resale Price Maintenance
The Competition Authority did not find a resale price maintenance agreement restrictive
when, given the very small market shares of the parties to the vertical agreement, such
agreement did not have appreciable effects on competition. 494
495
With the exception of Sony Music Entertainment Italy/Rivenditori, there are no
Competition Authority precedents analyzing resale price maintenance or recommended
491
Società ambrosiana Gelati s.a.s. and Others v. Autorità Garante della Concorrenza e del Mercato, 24
Feb. 2004, n. 1715 (Trib. amm. reg.).
492
Società ambrosiana Gelati s.a.s. and Others v. Autorità Garante della Concorrenza e del Mercato, 2
Oct. 2007, n. 463 (Cons. stato).
493
Sony Music Entertainment Italy/Rivenditori, 26 Feb. 2004, n. I564, Bulletin 9/2004.
494
Id.
495
Sony Music Entertainment Italy/Rivenditori, 26 Feb. 2004, n. I564, Bulletin 9/2004.