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

or not the decision is well-founded. Decisions are served on the parties and published in the
Bulletin. They are also available on the Competition Authority official website. 530
(g) Interim Measures
The 2006 Reform Package introduced a new provision into the Competition Law
formally granting the Competition Authority the ability to order interim measures. Under
Section 14-bis of the Competition Law, in urgent cases where there is a risk of serious and
irreparable damage to competition (periculum in mora) and a cursory examination reveals
the probable existence of an infringement (fumus boni iuris), the Competition Authority may
now order interim measures. Unlike under Article 8(2) of Regulation (EC) No. 1/2003,
interim measures may not be renewed or extended in their duration. If the decision ordering
interim measures is not complied with, the Competition Authority may impose a fine of up
to 3 percent of the concerned party’s turnover. 531
The Competition Authority used the new Section 14-bis powers immediately after the
enactment of this new provision. On September 14, 2006, in Associazione Bancaria
Italiana
532
it ordered ABI (the Italian Banks’ Association) to suspend immediately the
distribution to its members of a circular letter suggesting a certain approach on the
application of new legal provisions on unilateral changes to the contractual terms governing
current accounts. The interim measure was ordered ex parte. And the Competition
Authority made a very cursory assessment of whether the “urgency” criterion was met.
In Enel Distribuzione/Attivazione fornitura subordinate a pagamenti morosità
533
pregresse, the Competition Authority ordered interim measures against Enel
Distribuzione, the Italian incumbent operator active in the retail distribution of electricity to
household customers. Prompted by a complaint by a consumer, the Competition Authority
found that Enel Distribuzione refused to start supplying electricity to customers moving into
houses for which there were unpaid electricity bills from the previous occupant. Enel
Distribuzione was ordered to immediately modify this practice and start supplying those
new customers. As in the ABI case, the risk of a “serious and irreparable damage to
competition” was not examined in depth by the Competition Authority. It merely noted that
Enel Distribuzione had a dominant position against which customers had little means of
530
The Competition Authority’s website is available at http://www.agcm.it.
531
In the past, the Competition Authority had already ordered interim measures when applying the EC
Treaty provisions on competition law. See Merck-Principi attivi, 15 June 2005, n. A364, Bulletin
23/2005. Even though under Italian law the Competition Authority did not have formal powers in
this respect, it had done so by relying on the direct applicability of Article 5 of Regulation (EC) No.
1/2003. Under this provision, the National Competition Authorities of the Member States have the
power to order interim measures when applying Articles 101 and 102 TFEU. Though the TAR had
confirmed that the Competition Authority was entitled to do so, Merck v. Autorità Garante della
Concorrenza e del Mercato, 7 Mar. 2006, n. 1713 (Trib. ammin. reg.), there were still uncertainties
as to the boundaries of such power.
532
ABI/Modifica unilaterale delle condizioni contrattuali, 14 Sept. 2006, n. I675, Bulletin 35-36/2006.
533
Enel Distribuzione/Attivazione fornitura subordinate a pagamenti morosità pregresse, 18 Oct. 2007,
n. A390, Bulletin 39/2007.
146