An incumbent operator may engage in practices aimed at maintaining its customer base even in the context of a liberalisation process, but it must not resort to practices which, by exploiting the advantages of a legal historic monopoly, are likely to produce foreclosure effects on equally efficient competing undertakings, said Advocate General Athanasios Rantos in his Opinion of the Court of Justice of the European Union on Thursday 9 December (Case C-377/20).
Following the liberalisation of the electricity market in Italy, several companies belonging to the longstanding Italian group Enel are challenging before the Italian Council of State a fine of €27.5 million that the national competition authority imposed on them jointly and severally for having put in place a strategy of crowding out competitors on the free market through the launch of commercial offers to ‘captive’ customers, both private individuals and companies, while potential competitors had no access to the relevant data on protected customers.
The Advocate General interprets Article 102 TFEU in light of a question referred to the Court of Justice for a preliminary judgment. He believes that in a liberalised market, Enel can act to retain its customers and generate profits. The question is to what extent its competitors were able to imitate the dominant company’s behaviour and whether they were able to access the protected customer data.
That examination, the Advocate General considers, may be indicative of the potential ability of Enel’s conduct to produce or not produce partitioning effects and, therefore, of its conformity with competition on the merits.
See the conclusions (in French): https://bit.ly/3lPd781 (Original version in French by Mathieu Bion)