Judgment of the Court (Fifth Chamber) of 12 May 2022 (Request for a preliminary ruling from the Consiglio di Stato — Italy) — Servizio Elettrico Nazionale SpA, ENEL SpA, Enel Energia SpA v Autorità Garante della Concorrenza e del Mercato and Others

(Case C-377/20) (1)

(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 - Exclusionary abuse - Whether the practice is capable of having an exclusionary effect - Use of methods 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 preserve a dominant position inherited from a statutory monopoly - Imputability of a subsidiary’s conduct to the parent company)

(2022/C 257/05)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Servizio Elettrico Nazionale SpA, ENEL SpA, Enel Energia SpA

Defendants: Autorita Grante della Concorrenza e del Mercato, ENEL SpA, Servizio Elettrico Nazionale SpA, Eni Gas e Luca Spa, Eni SpA, Axpo Italia SpA, Gala SpA, E.Ja SpA, Green Network SpA, Ass.ne Codici — Centro per i Diritti del Cittadino

Intervening parties: Green Network SpA, Associazione Italiana di Grossisti di Energia e Trader — AIGET, Ass.ne Codici — Centro per i Diritti del Cittadino, Associazione Energia Libera, Metaenergia SpA

Operative part of the judgment

1. Article 102 TFEU must be interpreted as meaning that, for the purpose of establishing that a practice constitutes the abuse of a dominant position, it is sufficient, for a competition authority, to prove that that practice is capable of affecting adversely the effective competition structure on the relevant market unless the dominant undertaking concerned demonstrates that the anticompetitive effects which can result from that practice are counterbalanced or even outweighed by positive effects for consumers, in particular in terms of price, choice, quality and innovation.

2. Article 102 TFEU must be interpreted as meaning that, for the purpose of excluding that conduct of an undertaking in a dominant position is abusive, the evidence provided by the undertaking in question that that conduct did not have actual restrictive effects must be regarded as not being, in itself, sufficient. That element can constitute evidence that the conduct at issue is not capable of having anticompetitive effects, which, however, will have to be supplemented by other evidence aimed at demonstrating that lack of capability.

3. Article 102 TFEU must be interpreted as meaning that the existence of exclusionary abuse by an undertaking in a dominant position must be assessed on the basis of whether that practice is capable of having anticompetitive effects. A competition authority is not required to establish the intention of the undertaking in question to foreclose its competitors by methods or by making use of resources other than those governing competition on the merits. The evidence of such intention is nevertheless a factual circumstance which is capable of being taken into account for the purposes of establishing abuse of a dominant position.

4. Article 102 TFEU must be interpreted as meaning that a practice which is lawful in a non-competition law domain can, when implemented by an undertaking in a dominant position, be characterised as ‘abusive’, within the meaning of that provision, if it can have an exclusionary effect and if it is based on methods other than those which are part of competition on the merits. Where those two conditions are fulfilled, the undertaking in the dominant position concerned can nevertheless not fall within the prohibition laid down in Article 102 TFEU by proving that the practice at hand was either justified objectively and proportionate to that justification, or is counterbalanced, or even outweighed, by advantages in terms of efficiency which also benefit consumers.

5. Article 102 TFEU must be interpreted as meaning that when a dominant position is abused by one or a number of subsidiaries belonging to an economic unit, the existence of that unit is sufficient to regard the parent company as being also liable for that abuse. There must be a presumption that such a unit exists if, at the material time, at least the quasi-totality of the capital of those subsidiaries was held, directly or indirectly, by the parent company. The competition authority is not required to provide any additional evidence unless the parent company establishes that it did not have the power to define the conduct of those subsidiaries, which were acting autonomously.

(1) OJ C 348, 19.10.2020.