Abstract

The Italian Antitrust Authority («Iaa») has fined Poste Italiane («Pi») for abuse of dominant position in 2011. In particular, the Iaa stated that Pi, using its dominant position in the universal postal service («Us»), leveraged its dominant position in the Us market to other mail services. In particular, the Iaa stated that Pi, using assets and facilities of the Us for supplying liberated services, was able to provide these services at prices lower than competitors' prices. The Italian Administrative Tribunal («TAR») annulled the Iaa decision for lack of evidences. The Author highlights that Pi has an overcapacity of employees and assets (historically financed by public resources) and if Pi would use this overcapacity to subsidy its services in the liberalized postal markets, the postal services liberalization process in Italy could be lessened. The author highlights that in 2001 was enacted a law (L 57/2001) which states that undertakings which offer «... services of general economic interest ...» must operate with a different company if they need to operate in another markets. The scope of this law is to avoid cross subsidies between activities subsidised by the State (or protected by a legal monopoly) and other activities related to services offered in liberalized markets. It is not clear whether Pi and other former incumbents are obliged to the corporate separation pursuant to the law 57/2001. Pi has not implemented any corporate separation yet; the Author concludes that if Pi would fulfil the Law 57/2001 provisions, the Iaa would be in a better position to ascertain, in the case in reference, whether Pi has infringed the antitrust law.