Brussels à jour: Sempre Con Te – The European Court of Justice’s Judgment in Servizio Elettrico Nationale

The European Court of Justice’s Judgment in Servizio Elettrico Nationale – Meritbased Competition and Non-price Exclusionary Abuses under Article 102 TFEU.

Intel, Google Shopping, Qualcomm – Judgments on Article 102 TFEU have recently been raining down on us. Unfortunately, there is yet another instalment to be added to that list. But do not fear, for we are always with you. The same slogan was put forward by Italian ENEL Group in 2017. However, the Italian Competition Authority (AGCM) did not join into this collaborative spirit and imposed a fine on ENEL for abusing its dominant market position. After some procedural back and forth before national courts, the European Court of Justice now had the opportunity to shed light on a far-reaching question in Case C-377/20.1

• What constitutes abusive e conduct and in that context, what can be considered competition on the merits?

• How is merit-based competition related to the as efficient competitor test and how does all of that apply to non-price exclusionary abuses?

Pairing these questions with the formerly regulated Italian power market and – at least for EU law aficionados – a known name from an old landmark decision (Costa v ENEL rings a bell?), and you have got yourself a recipe for a potential new landmark decision.

Learn more.