By: Pablo Ibañez Colomo (Chillin’ Competition)
The Court of Justice delivered its judgment in Servizio Elettrico Nazionale last week (see here for the French version). Because the questions asked by the Italian Consiglio di Stato were so broad, some hoped that the ruling would provide an overarching framework applying to potentially abusive practices (what we might call an arrêt de principe).
Having read the judgment, it seems more likely that the analysis is tailored to the specifics of the case and will not apply to other cases (what we might call an arrêt d’espèce). Seen from this (more modest) perspective, both the analysis and the outcome at which the Court hints make perfect sense.
The case concerns a textbook example of abuse, if there is one. An incumbent that uses the assets it owes to its status as a former monopoly (as opposed to its investments or innovation) to favour its own activities is prima facie in breach of Article 102 TFEU. It is a quasi-Article 106 TFEU scenario. Thus, there would be every reason to be as strict as the Court has always been in cases involving exclusive or special rights.
The outcome suggested by the Court is supported by an analytical framework that works well in the specific context of the case. On the other hand, this framework does not appear to capture the case law in its full complexity. As a result, there is a chance that it will not be the reference that some hoped would become. I can think of two main reasons in this sense.
The first reason is that the scope of Article 102 TFEU is broader than one might infer from the judgment. The scenarios identified in it do not encompass all instances in which Article 102 TFEU can come into play. The Court is careful to use language that suggests that its framework is not exhaustive (see para 76, where the French version uses the word ‘notamment‘ and the Italian one ‘in particolare‘). These nuances, however, may be lost in future interpretations of the ruling.
If nuance is indeed lost, the framework applied in the judgment may lead to the underenforcement of Article 102 TFEU. Some behaviour that amounts (and has been found in the past to amount) to an abuse of a dominant position would escape the prohibition…