Opinion of the Advocate General — ECLI:EU:C:2021:998
Date: 2021-12-09
Language of the case: Italian
Subject matter: Competition;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C­377/20 – 1 
Case C­377/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 July 2020 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
21 May 2020 
Applicants and appellants:  
Servizio Elettrico Nazionale SpA 
ENEL SpA 
Enel Energia SpA 
Defendant and respondent:  
Autorità Garante della Concorrenza e del Mercato 
  
Subject of the action in the main proceedings 
Three appeals before the Consiglio di Stato (Council of State, Italy) seeking to 
have varied three judgments of the Tribunale Amministrativo Regionale per il 
Lazio (Regional Administrative Court, Lazio), which had confirmed that the 
defendants were guilty of an abuse of a dominant market position under 
Article 102 TFEU as identified by the Autorità garante per la concorrenza e il 
mercato (Italian Competition and Markets Authority, AGCM) (‘the Authority’). 
Subject matter and legal basis of the reference 
Interpretation of EU law, and in particular Article 102 TFEU, in accordance with 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­377/20 
 
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Questions referred 
1. May conduct that constitutes an abuse of a dominant position be completely 
lawful in and of itself and be classified as ‘an abuse’ solely because of the 
(potentially) restrictive effect created in the reference market, or must that 
conduct also be characterised by a specific ‘unlawful’ component, 
represented by the use of ‘competitive methods (or means) that are different’ 
from those that are ‘normal’? In the latter case, what criteria should be used 
to establish the boundary between ‘normal’ and ‘distorted’ competition? 
2. Is the purpose of the concept of abuse to maximise the well-being of 
consumers, with the court being responsible for determining whether that 
well-being has been (or could be) reduced, or does the concept of an 
infringement of competition law have the function of preserving in itself the 
competitive structure of the market, in order to avoid the creation of 
economic power groupings that are, in any case, considered harmful for the 
community? 
3. In the case of an abuse of a dominant position represented by an attempt to 
prevent the continuation or development of the existing level of competition, 
is the dominant undertaking in any case permitted to prove that the conduct 
did not cause any actual harm, despite its abstract ability to generate a 
restrictive effect? If the answer to that question is in the affirmative, for the 
purposes of assessing whether an atypical exclusionary abuse has occurred, 
must Article 102 TFEU be interpreted as meaning that the Authority has an 
obligation to examine specifically the economic analyses produced by the 
party concerning the actual ability of the conduct examined to exclude its 
competitors from the market? 
4. Must an abuse of a dominant position be assessed solely in terms of its 
effects on the market (including merely potential effects), without regard to 
the subjective motive of the agent, or does a demonstration of restrictive 
intent constitute a parameter that may be used (even exclusively) to assess 
the abusive nature of the dominant undertaking’s conduct? Does such a 
demonstration of the subjective component serve only to shift the burden of 
proof to the dominant undertaking (which would have the burden, at this 
stage, of providing evidence that the exclusionary effect is absent)? 
5. In the case of a dominant position held by a number of undertakings 
belonging to the same corporate group, is membership of that group 
sufficient to assume that even those undertakings that have not implemented 
the abusive conduct have contributed to the infringement, so that the 
supervisory authority would merely need to demonstrate a conscious, albeit 
non-collusive, parallel approach by the undertakings operating within the 
collectively dominant group? Or (as is the case for the prohibition on cartels) 
is there in any case a need to provide evidence, even indirectly, of a specific 
situation of coordination and instrumentality among the various 
SERVIZIO ELETTRICO NAZIONALE AND OTHERS 
 
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undertakings within the dominant group, in particular in order to 
demonstrate the involvement of the parent company? 
Provisions of EU law cited 
Article 102 TFEU 
Provisions of national law cited 
Article 3 of legge n. 287/1990 (Law No 287/1990): ‘Any abuse by one or more 
undertakings of a dominant position within the national market or a substantial 
part of it shall be prohibited …’.  
Outline of the facts and the main proceedings 
1 Since the electricity market in Italy was liberalised, the phases of generation and 
sale have been opened up to competition, whereas the transmission and 
distribution networks are still operated under a monopoly system on the basis of a 
ministerial concession, because the structures are limited and cannot be replicated. 
To guarantee neutral operation of those networks for the benefit of operators and 
users, the vertically integrated former monopoly undertaking in the sector – Enel – 
was, therefore, required to separate the various components of its electricity 
generation chain and hive off, in particular, the non-competitive segment from the 
activities opened up to free competition among operators. That process concluded 
with the creation of the following three companies: 
Enel Energia (EE), electricity supplier for the deregulated market, Servizio 
Elettrico Nazionale (SEN), supplier of the ‘enhanced protection service’, and e-
distribuzione, concessionaire for electricity distribution activities. 
The ‘Enhanced (price) Protection Service’ (EPS) means the supply of electricity 
to small end users that have not yet chosen a seller in the free market and will be 
served, under the law, by a company connected to the distributor under contractual 
and financial conditions determined by the authority responsible for the sector. 
SEN is currently the undisputed operator for the EPS, since it is present in the 
areas in which electricity distribution is undertaken by e-distribuzione, namely 
approximately 85% of Italian territory. The second best operator does not even 
cover 5% of that market. According to statutory provisions, the EPS will be 
phased out in January 2022, with all electricity supply activities then being subject 
to free market operations. 
2 The present proceedings stem from complaints made to the Authority about the 
illegal use of commercially sensitive information by Enel Group operators to 
transfer customers from SEN to EE, in view of the announced market change, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­377/20 
 
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avoiding a block transfer of those customers to free market offers from competing 
operators. 
According to the Authority’s reconstruction of events, SEN obtained the consent 
of users under the EPS to receive commercial proposals ‘in a discriminatory 
manner’, involving a request for initial authorisation for processing of personal 
data by companies within the Enel Group and a second request in favour of third-
party operators. The customers usually gave the initial consent, believing that this 
was necessary for managing the existing relationship with their supplier, while 
they usually refused the second consent, intended for other operators. Indeed, 
consent for third-party operators was only given in 30% of cases.  
The names of the customers consenting to provide information to Enel were 
included in lists created for that purpose. On the basis of those lists, EE launched 
offers dedicated exclusively to EPS customers, most recently the ‘Sempre con te’ 
offer. 
The EPS status of the customers was information that was otherwise unobtainable, 
which made SEN’s lists a strategic, non-replicable asset. Because they did not in 
turn have access to that information, the other operators lost 40% of demand 
subject to competition for the reference period (2014-2017) (potential restrictive 
effect). 
Despite the restructuring process, at the very least the top management of the Enel 
Group continued to exchange information and to make integrated decisions. 
3 The Authority therefore imposed a penalty on EE and SEN and also on the parent 
company Enel for abuse of a dominant position (Article 102 TFEU). The 
objections were upheld by the first-instance court against each of the three 
companies, although with a reduction in the penalty for the first two, on account 
of the more limited duration of the infringement and an error in the basis used to 
calculate the fine. All three appellants have lodged separate appeals before the 
Council of State, requesting that the decision be annulled in full or the penalty 
further reduced. 
Principal arguments of the appellants in the main proceedings 
4 There is no evidence of the abusive strategy or evidence of the potential 
exclusionary power of the conduct, because: 
– entering a name in a telemarketing list did not remove the consumer from 
competition, did not imply any supply obligation or commitment and did not 
prevent a consumer who had given consent from appearing in other lists, 
receiving other commercial communications, or choosing or changing supplier 
at any time, even more than once; 
SERVIZIO ELETTRICO NAZIONALE AND OTHERS 
 
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– the SEN lists were insignificant in quantitative terms given the size of the 
market and SEN’s customer base. Moreover, other more comprehensive lists 
with lower prices were available – and were used – in the market; 
– in particular, the use of the SEN lists in the two months between the launch of 
the ‘Sempre con te’ offer and the decision to close the associated sales channel 
generated only 478 customers, namely 0.002% of SEN users and 0.001% of 
electricity users; 
– the Authority did not take into consideration the evidence offered to 
demonstrate that the conduct being challenged was not even able to generate 
restrictive effects on competition, and did not, in fact, produce such effects. 
5 Furthermore, since 2014 the holding company Enel has transitioned from a 
centralised model to one in which the parent company simply promotes synergies 
and best practices among the various operating companies, without any further 
decision-making role. The parent company should not, therefore, be penalised, 
still less more severely than its operating companies. 
Succinct presentation of the reasons for the request for a preliminary ruling 
6 The relevant market is the market for retail sale of electricity to small domestic 
and non-domestic end customers in the areas where the Enel Group has a 
monopoly for electricity distribution. Enel’s dominant position is demonstrated by 
the permanent market share it holds in the reference market and its control of non-
replicable infrastructures, the connection between the various segments involved 
and the financial strength of the vertically integrated structure. The conduct being 
contested is an atypical exclusionary abuse compared to the examples provided in 
Article 102 TFEU, in that it was intended to prevent the growth or diversification 
of supply by competitor undertakings.  
7 The principal question is whether the conduct of the dominant undertaking is able 
to achieve the intended outcome of excluding the other operators present in the 
free market by draining the EPS customer base. During the course of the antitrust 
proceedings, the parties produced economic analyses intended to demonstrate that 
their conduct did not actually generate exclusionary effects. The Authority 
collected investigative material to demonstrate the existence of a strategic intent 
on the part of the group to reduce the disadvantage resulting from the phasing-out 
of the EPS. 
8 The points thus established create a number of questions for the referring court. 
Because Article 102 TFEU and the Italian provision transposing that text are both 
silent on the point, the court asks, first, (first question referred) whether the 
prohibited situation of ‘abuse of a dominant position’ must necessarily involve 
market conduct which is objectively unlawful or whether such abuse is 
represented by the restrictive or potentially restrictive effect of any conduct, even 
where completely legal, which the dominant undertaking implements for the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­377/20 
 
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purpose of strengthening its own position. In fact, the conduct implemented by the 
Enel Group is in itself legal (in terms of civil law), in so far as no complaint has 
been made of an alleged infringement of any specific provision governing 
personal data processing and the SEN lists appear to have been purchased at 
market price. 
9 By the second question, the referring court asks what economic effect is actually 
being prevented by the prohibition on abuse of a dominant position: the reduced 
well-being of consumers (for example, because of price rises; Commission 
Communication 2009/C 45/02) or a change to market structure, variety, quality 
and innovation, as emerges from important case-law of the Court. 
10 While it is true, on the basis of established case-law guidance, that an 
infringement of competition law may even consist merely of an attempt to prevent 
continued competition in the market or development of that competition, the 
referring court is uncertain whether evidence that no restrictive effect has actually 
occurred is, in any case, admissible, in the case of conduct that is merely capable 
in the abstract of producing restrictive effects. If the answer is in the affirmative, 
the question then arises as to whether the Authority has an obligation to verify 
specifically any evidence provided by the undertaking concerned to demonstrate 
that the conduct being contested is not actually able to exclude competitors from 
the market (third question). 
11 From another standpoint, there is a need to understand the relevance of the motive 
in assessing the abuse. Is the unlawful intent in fact not relevant, with evidence of 
the (real or potential) effects being sufficient, or – conversely – is it relevant to the 
point that it can in and of itself impute the alleged anticompetitive effects to the 
agent’s conduct, or does it serve merely to shift the burden of proof to the 
dominant undertaking, which must demonstrate that the exclusionary effect is in 
fact absent (fourth question)? 
12 The issue of evidence also arises in the fifth and final question, which raises the 
issue of how to determine the liability of legally independent undertakings that 
nonetheless service the market as a collective, joint enterprise: can the individual 
undertakings be charged with an infringement simply because they form part of 
the group, with the Authority therefore required merely to demonstrate that they 
operate in parallel with the others, or is there a need for evidence, even indirectly, 
of a specific situation of coordination and instrumentality, relating to the parent 
company in particular?