AGCM

The Antitrust Authority has launched a proceeding against Telecom Italia S.p.A. (TI) to investigate the possible infringements of art. 102 TFEU. According to the information obtained by the Authority, TI is alleged to have instituted multiple behaviour aimed at pursuing two objectives that are harmful to the competition:
- impeding the carrying out of tenders called by Infratel Italia for the coverage white areas with FTTH networks, in order to preserve the monopoly they have held historically in these territories and prevent the entry of new competing operators;
- forclosure customers of the new retail ultrabroadband (“UBB”) telecommunication services segment through anticompetitive commercial policies (predatory prices and lock-in clauses). In this way TI would achieve a double purpose: on the retail market, make its customer base less contestable to other competitors; on the wholesale market, to discourage investments in the new networks and make them less profitable.

In particular, Telecom Italia has allegedly organised a complex strategy to slow down the holding of the tenders announced by Infratel Italia S.p.A. intended to build ultrabroadband infrastructures in the areas of market failure in Italy. This behaviour consists in the distorted and abusive exercise of a set of rights abstractly attributable to TI. In particular, while the competitions announced by Infratel Italia S.p.A. were in progress, TI announced modifications to the investment plan that was previously communicated to Infratel during the public consultation aimed at defining the areas that would not be covered by any private investment in UBB infrastructure (market failure or white areas). In this way, TI has allegedly tried to bring back into question the market failure areas that resulted from the public consultation, by declaring its intention to invest anyway in white areas. The revision of the investment plan was said to have been announced even though the tender process already started and after the approval decision of the European Commission, pursuant to European regulations regarding State Aid of the extent of direct intervention proposed by the Government (Decision of the European Commission (SA.41647) of June 30 2016, in the EU’s Official Gazette [2016] C258/4). TI’s strategy to slowdown the progress of the competitions was also alleged to have been conducted through a shame litigation strategy. By slowing down the procedure for the selection of the parties charged with implementing the ultrabroad networks in white areas, TI could have impeded the development of infrastructural competition and the entrance of new competitors.

As for the commercial offer of ultrabroad-band telecommunication services, the Authority will assess whether the technical and economic conditions contained in them are such as to lock-in the customer to TI for a long period and with prices that cannot be replicated by alternative operators. This conduct could result in unduly shrinking the contestable market and limiting competition in the market for ultrabroadband retail telecommunication service, when UBB penetration is starting to increase among customers.

The initiating of the proceeding was communicated today during the inspections conducted by the Authority in conjunction with the Special Antitrust Unit of the Guardia di Finanza.

Rome, July 4 2017