AGCM

The Authority's decisions are in line with the principles laid down by the Council of State in the order of 22 December 2022. The interim decisions adopted against Hera and A2A have been revoked, however.

On 29 December the Italian Competition Authority, on the basis of the principles laid down by the Council of State, partially upheld the interim decisions adopted on 12 December against Enel, Eni, Edison, Acea and Engie, suspending only unilateral changes made to economic terms and conditions that had not expired in violation of the Consumer Code and in breach of Article 3 of Decree Law no. 115 of 9 August 2022 (the “Aid-bis Decree”), converted into Law no. 142 of 21 September 2022.

As held by the Council of State, under that Decree the effectiveness of the contractual clauses that allow the distribution companies to change the price of supply and any related pre-notifications are suspended from 10 August until 30 April 2023, unless the price changes had already been made before the Decree entered into force.

In the order partially suspending the interim decision adopted against Iren, the Council of State limited the scope of the aforementioned Article 3 to the “ius variandi for contracts that have not expired and not to contract renewals resulting from terms agreed by the parties”.

The Authority has, therefore, within the limits specified, upheld the interim decisions adopted against Enel, Eni, Edison, Acea and Engie suspending the validity of all communications of unilateral changes and/or renewal/updating/variation of the economic terms and conditions offered for contracts of indefinite duration without a clear, effective and predetermined or pre-determinable expiration date.

The Authority's decision therefore prevents the aforementioned companies from varying the price of supply to consumers, condominiums and micro-enterprises under contracts that do not have an effective expiration date.

Within five days, Enel, Eni, Edison, Acea and Engie must notify the Authority that they have complied with the suspension decisions.

With reference to Hera and A2A, the Authority did not find grounds for upholding the relevant interim decisions, given that, on the basis of the documents acquired, it appears that the changes communicated by them concerned price offers that were actually expiring.

Rome, 30 December 2022