AGCM

On 22 November 2017, exercising the powers provided for by Art. 22 of Law no 287 of 10 October 1990, the Italian Competition Authority (“ICA”) resolved to express an opinion sent to the Presidents of the Senate of the Republic and of the Chamber of Deputies as well as to the President of the Council of Ministers, concerning certain provisions set forth in Legislative Decree 148/2017 and its Conversion Bill 4741, which pertains to the “Conversion into law, with amendments, of Decree Law no 148 of 16 October 2017, containing urgent measures for financial matters and needs that cannot be postponed. Amendment to extinction of criminal liability regulations as a result of restorative conduct” (so-called tax decree).

Firstly, the ICA indicated that the provisions of Art. 19 quaterdecies of the bill in question regarding “fair compensation” for professionals are in opposition to competitive principles. This article introduces the general principle that contractual clauses between professionals and certain categories of customers setting lower fees than established by ministerial decrees are to be considered vexatious and therefore void. This provision effectively reintroduces minimum fees insofar as it links fair compensation to the fee parameters set in the decrees; it thus hinders professional price competition with regard to certain important types of customers, including the Public Administration.
The ICA emphasised that, according to established domestic and EU antitrust principles, fixed and minimum professional fees constitute a serious restriction to competition, as they prevent professionals from adopting an independent economic conduct including service price, the most important competitive tool. If approved, this provision would cause an unjustified turnaround in the important and challenging liberalisation process of professional services that has been underway for over a decade and that the ICA has constantly spoken in favour of; in addition, it does not comply with the requirements of the proportionality principle in competition law. Furthermore, any critical issues related to high demand could be addressed through a better use of the opportunities offered by new organisational models or the measures recently introduced by the Jobs Act to protect the self-employed in contractual imbalance situations and not through the measure in question, which would have the sole effect of altering the correct functioning of market dynamics and efficient allocation of resources.

Secondly, the ICA indicated that the provisions introduced in Art. 19 of Legislative Decree 148/2017, regarding collection of copyright and related rights, are not enough to guarantee the complete liberalisation of the sector, to the extent that they limit to collective management organisations alone the possibility of competing with the SIAE, which up to now has had the legal monopoly to collect copyright and related rights in Italy.
Indeed, there do not seem to exist imperative requirements of public interest connected to the structure or functioning of the Italian market that would preclude operators other than collective management organisations from entering it. The liberalisation should integrate as wide as possible a variety of choices for authors/composers as far as operators managing their rights, including independent collection agencies, for example. On the other hand, the provision in question risks turning out to be completely ineffective, maintaining de facto the current monopoly situation on the market and not meeting the current and potential demand for innovative services.

Rome, 27 November 2017