EDIZIONE HOLDING/AUTOSTRADE-CONCESSIONI E COSTRUZIONI AUTOSTRADE
PRESS RELEASE
PRESS RELEASE
The Competition Authority has begun noncompliance proceedings against the Edizione Holding S.p.A. company
At its meeting on 7 April 2004, the Competition Authority resolved to commence proceedings against the Edizione Holding S.p.A. company pursuant to section 19(1) of law 287/90, on the ground that it had failed comply with the conditions laid down by the Authority as a condition for authorising the acquisition of the controlling interest in the Autostrade company, issued in two of its measures dated 2 March 2000 and 13 September 2001.
In the 2 March 2000 measure, the Authority ascertained that the acquisition of the controlling interest in Autostrade by Edizione Holding, which already controlled Autogrill, would have strengthened the latter's dominant position on the motorway catering market, and had only authorised the operation subject to total compliance with a number of measures to adjust the anti-competitive effects which the acquisition was likely to produce. The Authority, inter alia, required Autostrade S.p.A., and the other motorway service franchisees controlled by it, not to directly supply catering services themselves but to entrust this service at all times to third parties using the procedures provided by article 4 of the agreements concluded with ANAS.
In the measure dated 13 September 2001, which was issued following a request filed by Edizione Holding for a review of a number of the measures provided in the 2001 instrument, the Authority reiterated the scope of its obligation to award the services to third parties by tender, and particularly to ensure that if the subfranchisees did not intend to manage the catering service themselves, it had to be awarded using non-discriminatory, transparent tendering procedures. Edizione Holding undertook to ensure that the subfranchisee would be contractually obliged to comply in this regard.
After examining the information subsequently acquired by the Authority, it transpired that the tenders that had been called by the Adviser were unlikely to ensure compliance with the requirements of the aforementioned measures. In particular, the Authority notified Edizione Holding that the so-called "integrated" tenders failed to guarantee all the interested parties a potentially equal right of access to the tender because they required the catering provider to find an oil partner in order to be able to take part in the tender.
The Authority also deemed the conditions for the tender to be discriminatory where they permitted the holder of the right of pre-emption to be re-awarded the catering service as a member of a "temporary joint-venture" (ATI) with other parties, and whose exercise of the right of pre-emption would also apply to the other members of the joint-venture. For this system made it possible for the party with a right of pre-emption to choose which service provider would be awarded the catering service, without requiring a further tender to be called. This was in breach of the conditions laid down by the Authority in the aforementioned measures.
In the light of the foregoing, the Authority has therefore commenced noncompliance proceedings, on the ground that Edizione Holding had failed to comply with the terms and conditions under which the acquisition had been authorised in 2000.
The investigation will be completed within 90 days of the date of service.
Rome, 23 April 2004.