The case came about in the context of the progressive liberalisation of the electricity market in Italy, where several of incumbent operator ENEL’s companies operate and where the Italian competition authority fined ENEL for abuse of a dominant position in the market for private individuals and small businesses covered by a regulated price regime (case C-577/0) (see EUROPE 12850/29).
The Court of Justice of the EU—to which the [Italian] Council of State referred the matter—has specified the conditions under which the conduct of an undertaking can be regarded as constituting abuse of a dominant position when such conduct is based on the use of resources (access to relevant customer data) or means inherent to holding such a position.
According to the Court, a competition authority discharges its burden of proof if it demonstrates that an undertaking in a dominant position could adversely affect, by using resources and means related to its position, the effective competition structure, without the authority necessarily having to prove that the disputed practice directly harms consumers.
The dominant undertaking can escape the prohibition on exclusionary practices (Article 102 TFEU) by showing that the exclusionary effect resulting from the practice at issue is counterbalanced or even outweighed by positive effects for consumers.
However, the evidence produced by [the undertaking] to demonstrate its conduct has no exclusionary effects alone is not sufficient to preclude the application of Article 102. That factor will constitute evidence that must be corroborated by other evidence that aims to establish that a practice does not result in abuse of a dominant position.
Furthermore, a competition authority is not required to establish that a dominant undertaking has the intention of excluding its competitors by using resources or means other than those governing competition on the merits.
Finally, the Court of Justice is of the opinion that, when an undertaking loses a legal monopoly, it must, during the entire phase of liberalising the market, refrain from using means that were previously available to it—and that are not available to its competitors—to maintain, other than on its own merits, a dominant position on the market in question.
See the judgment (in French): https://aeur.eu/f/1lj (Original version in French by Mathieu Bion)