Ferrovie dello Stato Italiane in Successful Appeal Against Italian Antitrust Authority

March 27, 2014

Cleary Gottlieb represented Ferrovie dello Stato Italiane, the holding company of the Italian railway incumbent, in successful judicial review proceedings brought before the Administrative Regional Tribunal sitting in Rome (the “TAR Lazio”) by FSI and its subsidiaries Rete Ferroviaria Italiana (the railway infrastructure manager) and Trenitalia (the incumbent railway operator), against the Italian Competition Authority.

In a decision adopted in August 2012, the ICA found that the FSI Group abused its dominant position in violation of Article 102 TFEU through a “single and complex” abusive strategy aimed at hindering access to the railway passenger transport market from newcomer Arenaways, a private competitor, and imposed fines totalling €300,000. In the ICA’s view, the FSI Group engaged in dilatory tactics aimed at delaying the satisfaction of Arenaways’ requests for network capacity allocation (on the ring Torino-Milano-Alessandria in both directions with stops). The FSI Group was also held liable for supplying misleading information to the railway transport regulator (the URSF) in the course of the investigation the latter initiated in order to assess whether Arenaways’ access to the market should have been subject to certain limitations, as provided by the relevant rules for the sake of protecting the provision of universal service by the incumbent operator in conditions of economic balance (the URFS eventually decided to allow Arenaways to provide services from Torino to Milano only without stops).

On March 27, 2014, the TAR Lazio ruled in favor of the applicants and quashed the ICA decision. The Court held that the ICA wrongly characterized as dilatory tactics what was in reality a legitimate and genuine consultation that the FSI opened with the regional authorities concerned in order to solve objective technical difficulties connected to Arenaways’ requests. The TAR Lazio also found that the ICA encroached on the URSF’s competence by questioning the conclusions the regulator had reached in closing its investigation into the FSI Group’s conduct.