ANTITRUST | Consiglio di Stato on the abuse of economic dependence

On 27 November 2024, the Italian Administrative Court of Second Instance (“Consiglio di Stato”) rejected the appeal brought by Hera S.p.A. (“Hera”) against the judgment by which the Regional Administrative Court of First Instance had upheld the decision of the Italian Competition Authority (“ICA”) sanctioning Hera for abuse of economic dependence. Hera’s conduct had consisted in including excessively long payment terms in the tender documents for the supply of smart gas meters to its customers, in breach of Article 9.3.bis of Law No 192/1998. In rejecting Hera’s claims, the Consiglio di Stato stated that the latter provision legitimised the ICA to exercise its sanctioning powers in relation to the widespread and repeated infringement of the legal framework on late payment in commercial transactions. According to the Consiglio di Stato, such a violation could be considered per se as an abuse of economic dependence, without the need for the ICA to have previously established the existence of economic dependence. Moreover, the Consiglio di Stato noted the inapplicability of the time limit for objecting to the infringement provided for by Law No. 698/1981, since the procedure falls within the ICA’s jurisdiction.

Newsletter n. 102 – December 2024