At the end of March, the Regional Administrative Court of Lazio (RAC) annulled the decision of the Italian Competition Authority (ICA) finding that CTS Eventim-TicketOne group (TicketOne) abused its dominant position on the Italian market for the sale of tickets for pop and rock music concerts.
In 2021, the ICA fined TicketOne EUR10.9m for implementing what it called a "complex strategy" aimed at preventing competing ticketing operators from selling tickets for live pop and rock music events.
According to the ICA, part of TicketOne's strategy was the acquisition of four national live music event promoters. These transactions, which were not reviewed under merger control rules as they fell below the EU and Italian notification thresholds, allegedly enabled TicketOne's event promotion business to boycott rival ticket sellers.
A number of companies from the TicketOne group separately appealed the decision on various grounds. The RAC annulled the ICA's decision. It concluded that the ICA had failed to prove to the requisite legal standard the existence of a single exclusionary strategy against competing ticketing operators.
In particular, the RAC focused on the acquisition of the four national promoters, holding that mergers can only be assessed within the EU or domestic merger control framework and cannot be considered as an element of any alleged exclusionary strategy. The RAC found that the ICA had made a procedural error by rejecting TicketOne's argument that the acquisitions were a legitimate business response to the expansion of its main competitor.
Importantly, the RAC also noted that the 1973 judgment of the European Court of Justice (ECJ) in Continental Can, where the acquisition of a rival was held to amount to an abuse of dominance, was rendered obsolete when the European Commission adopted a merger control regime. It added that if mergers could be analysed for antitrust purposes outside the merger control mechanism, the protection system set up in the legislation would be irremediably compromised in violation of the principle of legal certainty and the freedom to engage in economic activity.
This is not the first time that the question of how to assess non-notifiable mergers has been raised in the past year. Last July, the Paris Court of Appeal sent a preliminary ruling request to the ECJ asking whether the prohibition of abuse of dominance applies to mergers that do not meet notification thresholds. The case concerns a complaint to the French Competition Authority (FCA) by towerCast (a radio and television transmission company) related to Télédiffusion de France (TDF)'s acquisition of Itas, a competitor in the terrestrial broadcasting market. towerCast referred to Continental Can in support of its argument that TDF's acquisition was used to reinforce its dominant position. The FCA disagreed. The ECJ's ruling is eagerly anticipated.
Emilio acted for CTS Eventim in the Italian case.
Originally published 4 May, 2022
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