Antitrust Concorrenza Ue

EU Antitrust & Italian Competition Law Consultant

1. FOUNDATIONAL CONCEPTS

Objective of Antitrust Law

Antitrust law protects the well-functioning of markets by preventing practices that harm:

• Allocative efficiency: Price as low as possible with maximum output
• Dynamic efficiency: Innovation, quality, variety
• Consumer welfare: Both short-run (price/output) and long-run (innovation) dimensions

Core model: Perfect competition (equilibrium E*) where price = marginal cost and output is maximized.

Three Pillars of EU Competition Law

1. Art. 101 TFEU → Anti-competitive agreements
2. Art. 102 TFEU → Abuse of dominant position
3. Regulation 139/2004 → Merger control

2. ARTICLE 102 TFEU: ABUSE OF DOMINANT POSITION

Dominant Position

Definition: Ability to increase price independently from rivals' reactions in a durable, profitable way.

Requirements to establish dominance:

• Relevant market definition (product + geographic)
• High market share (≥50% presumes dominance; requires analysis below this threshold)
• Barriers to entry (structural, regulatory, strategic)
• Absence of countervailing buyer power

Types of Abusive Practices

Exploitative Practices (harm consumers directly):

• Excessive prices: Prices far above competitive level without objective justification (rare)
• Price discrimination: Different pricing without cost justification

Exclusionary Practices (foreclose competitors):

• Predatory pricing: Pricing below cost to eliminate rivals; recovery unlikely
• Refusal to deal: Denying access to essential facilities/resources (e.g., network access)
• Price squeeze: Margin between wholesale and retail prices too thin for downstream competitors
• Tying/bundling: Conditioning sale of one product on purchase of another (e.g., Microsoft case)
• Loyalty rebates: Rebates conditioning discounts on exclusive/quasi-exclusive dealing
• Exclusive dealing: Contractual restrictions preventing rivals' access to customers
• Discriminatory practices: Applying different conditions to equivalent transactions

Key Distinction

Self-preferencing (e.g., Google Search preferring own products) = exclusionary abuse, not "essential facilities" exemption.

Case reference: Google Shopping—dominant firm manipulating algorithm to favor own comparison service breaches Art. 102.

3. ARTICLE 101 TFEU: ANTI-COMPETITIVE AGREEMENTS

Definition & Scope

Agreement: Any form of cooperation among firms (formal, informal, concurrence of wills). Form irrelevant; substance determinative.

Constituent Elements:

1. Multilateralism (≥2 independent undertakings)
2. Agreement (decision, concerted practice, or association decision)
3. Subjects of the agreement (EU definition of undertaking)

Object vs. Effect Analysis

Restrictions by Object:

• No need to prove anticompetitive effect; manifestly anticompetitive by nature
• Examples: Price fixing, market sharing, output limits, exclusive dealing (unless ancillary)

Restrictions by Effect:

• Must prove significant anticompetitive effect on relevant market
• Analyzed via: market shares, degree of intrinsic restrictiveness, market power, market structure
• Threshold: De minimis doctrine (1-2% relevant market share for competitors; 3% for non-competitors → presumed harmless)

Art. 101(3) Exemption (Four Conditions)

Agreement may be lawful if it:

1. Creates efficiencies (cost savings, innovation, quality improvement)
2. Benefits consumers (consumer welfare must increase; efficiency gains passed on)
3. No unnecessary restrictions (ancillary restraints only; least restrictive means)
4. Does not eliminate competition (must preserve workable competition)

Common Cartel Types

• Horizontal price fixing: Naked cartels (always unlawful)
• Market sharing: Geographic/customer allocation (always unlawful)
• Quotas/output limits: Production agreements (always unlawful)
• Bid rigging: Collusive tendering (always unlawful)

Concerted Practices

Definition: Practical cooperation without formal agreement. Established via "plus factors":

• Parallel behaviors + circumstantial evidence (e.g., price announcements, information exchange)
• Oligopolistic interdependence (natural alignment of parallel behavior) ≠ concerted practice
• Requires proof of deliberate coordination opportunity + willingness to cooperate

4. MERGER CONTROL (Regulation 139/2004)

Scope & Thresholds

Concentration: Change of control on lasting basis (merger, acquisition, joint venture with autonomous functions).

Notification required if:

• EU-wide: Combined turnover >€5bn + individual turnover >€250m each (≥3 jurisdictions)
• National: Varies (Italy: €500m threshold via L. 287/1990)

SIEC Test

Substantial Impediment to Effective Competition (SIEC): Must assess whether merger "significantly impedes effective competition" via:

Six-step analysis:

1. Define relevant market (product + geographic)
2. Assess actual competition (market shares; HHI threshold analysis)
3. Analyze market concentration (HHI <1000 = unconcentrated; 1000-2000 = moderate; >2000 = highly concentrated)
4. Check market structure (post-merger concentration, delta HHI changes)
5. Examine competitive dynamics (barriers to entry, buyer power, efficiency gains)
6. Apply merger-specific effects (unilateral effects, coordinated effects, vertical foreclosure)

Structural Remedies: Forced divestiture (nuclear option) Behavioral Remedies: Licensing, access commitments, non-compete limits

Key Concepts

• Vertical mergers: Less problematic if no foreclosure risk; leverage of market power rare
• Conglomerate mergers: Bundling/tying risk if dominant in one market
• Efficiency gains: Valid defense if pro-competitive and passed to consumers
• Failing firm defense: Merger permitted if firm would exit market anyway

Case reference: Siemens/Alstom—blocked; would create European champion but harm competition; industrial policy goals insufficient.

5. ITALIAN COMPETITION LAW (L. 287/1990 & AGCM)

Parallel Framework

• AGCM (Autorità Garante della Concorrenza e del Mercato) = Italian NCA
• Applies Art. 101/102 TFEU + domestic law (stricter permitted)
• Interplay: Art. 101/102 + national law simultaneously applicable; EU law pre-empts where overlapping

Italian Specifics

• Art. 2 (AGCM jurisdiction): Abuses harming Italian market
• Notification not required (unlike some regimes); merger thresholds lower (€500m)
• Private enforcement weak: Administrative judges, not ordinary courts; damages rare

AGCM Powers

• Investigation (inspections with warrant)
• Fines: Up to 10% relevant turnover (similar to EU; recent increases)
• Behavioral + structural remedies
• Settlement/commitment procedures

6. ENFORCEMENT & REMEDIES

Public Enforcement

EU Commission pathway:

• Preliminary inquiry → Formal investigation → Prohibition decision → Appeal (ECJ)
• Burden of proof on Authority
• Fines: Up to 10% global annual turnover (Art. 23, Regulation 1/2003)

Italian AGCM pathway:

• Appeal to TAR (administrative tribunal) → Consiglio di Stato (administrative court)
• Administrative judges (not ordinary courts)

Private Enforcement

Damages claims:

• Via ordinary courts (EU/Italy)
• Burden of proof on claimant (expensive; rare follow-on actions in Italy)
• Treble damages in US; single compensation in EU

Leniency Program

First to report cartel = full immunity from fines Subsequent applicants = fine reduction (20-50% depending on evidence quality) Purpose: Incentivize cartel destabilization; cartels hidden but discoverable

Remedies Types

1. Prohibition decisions (neg): Stop illegal conduct (e.g., "cease exclusive dealing")
2. Commitment decisions (pos): Affirmative behavioral remedies (e.g., "grant access to network")
3. Structural remedies (rare): Divestiture (mergers) or forced separation (abuses)
4. Settlement/commitment: Faster resolution; lower fines

7. DIGITAL MARKETS & DMA

Digital-Specific Challenges

• Data accumulation: Scale benefits in digital platforms; switching costs high
• Network effects: Winner-takes-most dynamics; barriers to entry steep
• Ecosystems: Vertical integration obscures foreclosure (e.g., app store abuses)

Key Digital Cases

• Google Search (2019): Preferring own shopping service = abuse (Art. 102)
• Facebook (2021): Leveraging social network to foreclose competitors in online advertising
• Intel (2009): Predatory pricing + rebates in x86 processors

Digital Markets Act (DMA)

EU's ex-ante approach (complementary to Art. 101/102):

• Gatekeepers (high market share + indispensability + significant EU impact) must comply with rules:
  • Interoperability obligations
  • No discrimination in access to services
  • No self-preferencing
  • Data portability
  • Anti-lock-in provisions
  • Transparency in ranking

Difference: DMA prohibits conduct ex-ante (before harm proven); Art. 102 requires dominant position proof.

8. PRACTICAL CHECKLIST FOR CONSULTANTS

Abuse of Dominant Position Analysis

• Define relevant market (product + geography)
• Calculate market share (≥50% presumption)
• Assess barriers to entry (regulatory, structural, strategic)
• Identify abusive practice (exploitative vs. exclusionary)
• Check objective justification (efficiency, consumer benefits)
• Quantify effects (price increase, output reduction, foreclosure)
• Assess fines: 10% global turnover × gravity × duration

Agreement Analysis (Art. 101)

• Identify agreement/concerted practice (form irrelevant)
• Check restriction by object (price fixing, market sharing = automatic violation)
• If by effect: Calculate market share (de minimis threshold applies)
• Assess counterfactual (what would happen without agreement?)
• Check Art. 101(3): Efficiencies, consumer benefit, necessity, competition preservation
• Leniency exposure (cartels = criminal in some jurisdictions)

Merger Clearance (Reg. 139/2004)

• Confirm EU/national thresholds met
• Define relevant market
• Calculate HHI + delta
• Assess unilateral effects (market share, barriers, customer switching)
• Check coordinated effects (market transparency, symmetry, enforcement mechanisms)
• Identify merger-specific efficiencies
• Consider remedy necessity (divestiture vs. behavioral)

Digital-Specific (DMA/Art. 102)

• Assess gatekeeper status (market share, indispensability, EU impact)
• Check data leverage (accumulation via network, secondary markets)
• Evaluate self-preferencing (ranking manipulation, tying)
• Consider switching costs (lock-in, interoperability deficits)

9. SELECTED CASE REFERENCES

Note: This skill provides practical antitrust analysis tools grounded in Bocconi course materials (Chiara Banti). Consult local counsel for jurisdiction-specific enforcement nuances.