Poste Italiane Secures a Victory against the Italian Antitrust Authority and Competitor TNT Post before the Council of State

Cleary Gottlieb has successfully represented Poste Italiane S.p.A., the Italian incumbent postal operator, before the Council of State, the highest Italian administrative court, in the appeal proceedings brought by the Italian Antitrust Authority and competitor TNT Post Italia S.p.A. The IAA and TNT had requested that the court set aside the ruling at first instance of the Administrative Tribunal of Lazio (the “TAR”), which last year annulled an IAA decision finding that Poste had abused its dominant position in the markets for guaranteed time and date delivery services, and notification through messengers, and imposing on the company a fine of €39.4 million.

Following an investigation that lasted more than two years, in 2011 the IAA ruled that Poste was guilty of having pursued a single complex strategy aimed at excluding complainant TNT and other competitors from the relevant markets. Such abusive strategy allegedly consisted of three conducts: (i) the application of a procedure for handling mail sent through other postal operators, but found in Poste’s network, according to which such mail was returned directly to senders; (ii) the offer of the relevant products at allegedly selective and predatory prices; and (iii) the offer of predatory prices in two public tenders concerning the delivery of administrative acts. According to the TAR, however, the IAA failed to prove to the required legal standard that the contested practices violated Article 102 TFEU.

On January 10, the Council of State published the operative part of its judgment, upholding the TAR’s ruling being appealed. The grounds of the judgment will be published at a later stage, within the next few months.