The chapter compares EU and Italian case law as regards ‘new’ forms of abuse of dominance. ‘New’ forms of abuse mean practices that differ from those traditionally falling within the scope of Article 102 TFEU, and which generally take place in connection with regulatory processes or litigation. In doing so, the chapter explores the relationship between the EU concept of abuse of a dominant position and the concept of ‘abuse of law’ within the Italian legal system. Keywords: vexatious litigation; abuse of regulatory process; abuse of dominance based on exceptional circumstances; Italian courts; Italian NCA; intent
Mario Siragusa and Kostandin Peci
Mario Siragusa and Fausto Caronna
In the European Union and thus in Italy, there are two main instruments to guarantee effective competition on the markets, and these have converged over time. On the one hand, there is antitrust law, which has been applied so extensively as to become a sort of ‘regulatory antitrust’. On the other hand, there is sector-specific regulation, whose mode and timing of intervention has been aligned to antitrust law approaches to become a sort of ‘pre-emptive competition law’. Debates abound regarding the relationship between competition law and sector-specific regulation as alternative and/or overlapping mechanisms by which to address market failure. The trends indicate that competition law and sector-specific regulation are considered as complements, with companies subject to both regulatory and antitrust scrutiny. In this regard, it must be questioned whether the cumulative approach may, at least in some circumstances, lead to disproportionate results. Indeed, over time, this complementarity has become a critical issue, multiplying jurisdictional conflicts as well as creating a risk of regulatory inconsistency. It is precisely the desire to minimize these concerns that prompted the Plenary Session of the Italian Council of State to displace rules on unfair commercial practices by the application of the principle of lex specialis in the field of consumer protection. Although it is clear that lex specialis does not apply tout court to competition law, this evolution is interesting because it questions the (remaining) differences between the two instruments and their optimal coordination. This chapter seeks to devise solutions for the optimal allocation of jurisdiction between the two types of authorities, which should guarantee a high level of legal certainty and consistent administrative action and ensure compliance with the ne bis in idem (double jeopardy) principle, while not overlooking the fundamental principle of supremacy that characterizes the competition rules enshrined in the TFEU.
Mario Siragusa, Maurits Dolmans, Romano F. Subiotto QC, Paul Gilbert and John Messent
The EU Interchange Fee Regulation (‘IFR’) introduced price caps on the fees paid between banks in respect of credit and debit card payments. The Second Payment Services Directive (‘PSD2’) forces some payment schemes to open up their networks to any banks that want to use them. These rules, together with a wealth of related and ancillary provisions, are the legislative fallout from a series of antitrust investigations into Visa and Mastercard. But the rules are not limited to Visa and Mastercard, nor are they limited to schemes that operate in the same way as Visa and Mastercard. They extend to payment schemes with no interchange fees at all and with tiny market shares. One argument made for including all schemes within the scope of the rules was to create a level playing field for competition. Instead, regulation that was initially aimed at Visa and Mastercard has created high entry barriers and hamstrung the only realistic challengers to these four-party schemes. If rival schemes are unable to offer customers or merchants something different, all payment services will become commoditised. Without meaningful rivals, the duopoly of Visa and Mastercard will become more entrenched and customers will see a reduction in choice and innovation. The unintended consequence of the IFR and PSD2 could be to reduce competition in the market, the very thing they were originally designed to address.