Large-scale distribution and collusion: The return of buying alliances

On 4 November 2019, the European Commission announced that it had opened an investigation into two major French supermarket groups, Casino and Intermarché, in order to assess whether they had illegally used a joint venture set up in 2014 for the joint procurement of their branded products.

At national level, the most relevant case concerning purchasing organizations dates back to 2014, when the Italian Competition Authority (ICA) – considering the results of the sector inquiry involving the large-scale distribution industry – opened an investigation against the central purchasing organization Centrale Italiana and the retailers that formed part of it. The ICA ultimately closed with the acceptance of the commitments proposed by the parties (providing for the dissolution of Centrale Italiana). The in-depth investigation carried out at EU level will probably give further input to National Competition Authorities.

Algorithms and competition: The views of the French and German authorities

On 6 November 2019, the French Autorité de la concurrence and the German Bundeskartellamt published a joint study on the potential antitrust risks related to the use of algorithms.

The authorities analysed the functioning of pricing algorithms, describing three possible scenarios in which their use may lead to forms of collusion between competing undertakings, thus triggering the power of the competent authorities to intervene in order to restore full competition in the market. As a result of the swift evolution of digital markets, the authorities undertook to consolidate their expertise on algorithms and to devote more resources to the challenges posed by ongoing digitalisation.

Italian Competition Authority sanctions suspended, but with security conditions

In decisions issued in November, the Administrative Court of Latium upheld the request submitted by the undertakings affected by the Italian Competition Authority (AGCM) decision I805 – Corrugated board prices, granting the suspension of the duty to pay a fine contingent on the provision of a security (including through bank guarantee) for the amount of the imposed fine.

There have now been five cases this year in which the Administrative Court of Latium has suspended – with similar formulas – a fine imposed by the AGCM at the end of proceedings aimed at ascertaining anticompetitive agreements. The suspension of the duty to pay the fine, contingent on the provision of a security, was in fact granted by the Administrative Court of Latium in 2019 to the undertakings involved in decisions I811 – Auto financing, I808 – FM4 Consip tender – Agreements between the main facility management operators, I806 – Award of contracts for forest firefighting and I816 – teneder for medical waste management in Campania region.

Italian Competition Authority approves acquisition of Persidera by F2i, with conditions

On 12 November 2019, the Italian Competition Authority cleared – subject to conditions – the acquisition of Persidera S.p.a. by the asset management company F2i S.G.R. S.p.a. and EI Towers S.p.a., which are active in the sector of network facilities for TV broadcasting.

EI Towers’ shares are divided between F2i, controlling the company with a 60% share, and Mediaset S.p.a.

As a result of the transaction, Persidera – which is active in the deployment, assurance and management of TV frequencies (so-called multiplex) on digital terrestrial – will be divided into NetCo, acquired by EI Towers, and MuxCo, acquired by F2i. NetCo will be the owner of the network facilities for TV broadcasting and MuxCo will mainly hold the immaterial assets, such as the right of use of the frequencies.

In the light of the control already held by F2i on EI Towers, the Authority has confirmed that the acquisition of Persidera by F2i entails the strengthening of the dominant position of the new entity in the market for the network facilities for TV broadcasting, which is likely to eliminate or reduce competition in the market and in downstream markets.

Therefore, the Authority has cleared the operation subject to the conditions proposed by the parties during the investigation, which include: (i) access obligations to the network facilities under fair, transparent and non-discriminatory conditions; (ii) obligations to provide full-service services (which involve the full management of the frequencies of the network operator) under fair, transparent and non-discriminatory conditions; (iii) measures regarding the independence of MuxCo; (iv) measures aimed at reducing the information exchange risk between MuxCo, NetCo, EI Towers, F2i and Mediaset; (v) introduction of a clause aimed at transferring the efficiencies generated by NetCo to MuxCo, for the benefit of the customers operating in downstream markets.

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