Judgment of the Court Fifth Chamber of 12 May 2022, Servizio Elettrico Nazionale and Others, C-377/20

• Date: 12 May 2022
• Year: 2022

16

V. COMPETITION

1. ABUSE OF A DOMINANT POSITION (ARTICLE 102 TFEU)

Judgment of the Court (Fifth Chamber) of 12 May 2022, Servizio Elett rico Nazionale and

Others, C-377/20

Reference for a preliminary ruling – Competition – Dominant position – Abuse – Article 102 TFEU – Effect

of a practice on the well-being of consumers and on the structure of the market – Abusive exclusionary

practice – Whether the practice is capable of producing an exclusionary effect – Use of means other than

those coming within the scope of competition on the merits – Hypothetical as-efficient competitor unable

to replicate the practice – Existence of an anticompetitive intent – Opening up of the market for the sale

of electricity to competition – Transfer of commercially sensitive information within a group of

undertakings in order to pr eserve a dominant position inhe rited from a statutory monopoly – Imputability

of a subsidiary’s conduct to the parent company

This case has arisen in the context of the progressive liberalisation of the market for the sale of

electricity in Italy.

Although, since 1 July 2007, all users of the Italian electricity network, including households and small

and medium-sized enterprises, have been able to choose their supplier, a distinction was drawn

initially between, on the one hand, customers that were eligible to choose a supplier on the free

market and, on the other, customers in the protected market, the latter consisting of private

individuals and small businesses that continued to be covered by a regulated regime referred to as

the servizio di maggior tutela (enhanced protection service), which included special protection of

prices in particular. It was only subsequently that customers in the latter category were allowed

access to the free market.

For the purposes of that liberalisation of the market, ENEL, an undertaking that, until that point, had

been vertically integrated, had held the monopoly in electricity generation in Italy and had also been

active in the distribution of electricity, underwent an unbundling of its distribution and sales activities

and its trade marks. Following that procedure, the activities relating to the various stages of the

distribution process were attributed to separate subsidiaries. Accordingly, E-Distribuzione was

entrusted with distribution services, Enel Energia with the supply of electricity on the free market and

Servizio Elettrico Nazionale (‘SEN’) with management of the enhanced protection servi ce.

Following an investigation conducted by the Autorità Garante della Concorrenza e del Mercato

(AGCM) as national competition authority, that authority adopted, on 20 December 2018, a decision in

which it held that, during the period from January 2012 to May 2017, SEN and Enel Energia,

coordinated by their parent company, ENEL, had abused their dominant position in breach of

Article 102 TFEU and consequently imposed a fine of over EUR 93 million jointly and severally on

those companies. The conduct compla ined of consisted in an exclusionary strategy intended to

transfer the customer base of SEN, as incumbent manager of the protected market, to Enel Energia,

which operates on the free market, in order to mitigate the risk of a large-scale departure of SEN’s

customers to new suppliers on the subsequent opening to competition of the market concerned. To

that end, according to the AGCM’s decision, the customers in the protected market were, inter alia,

asked by SEN to give their consent to receive commercial offers relating to the free market using

discriminatory methods with respect to the offers of ENEL’s competitors.

The fine was reduced to approximately EUR 27.5 million in compliance with judgments delivered at

first instance in the context of actions brough t by ENEL and its two subsidiaries against the AGCM’s

decision. Those companies have brought appeals against those judgments before the Consiglio di

Stato (Council of State, Italy), which has asked the Court questions relating to the interpretation and

application of Article 102 TFEU in cases relating to exclusionary practices.

By its judgment, the Court sets out the conditions under which the conduct of an undertaking can be

regarded, on the basis of its anticompetitive effects, as constituting abuse of a dominant position