Can the competition law become an anti-competition law? It depends on the point of view, Totò would have said. And there is no doubt that for the parliamentarian who presented the amendment 52.0.200/1 (text 2), which proposes to repeal the paragraph 2 quater of the article 8 of the law 287/1990 (the one that the competition introduced), the competition law can represent an excellent opportunity to reduce it.
The paragraph whose repeal is proposed reads: "In order to guarantee equal opportunities for economic initiative, if the companies referred to in paragraph 2 (i.e. operating under a monopoly or performing services of general economic interest) make available to companies they investees or subsidiaries in the different markets referred to in paragraph 2-bis goods or services, including information, of which they have the exclusive availability depending on the activities carried out pursuant to the same paragraph 2, they are required to make these goods or services accessible, equivalent conditions, to other directly competing companies.
The intent of this rule is clear: do you provide a monopoly service? Well, infrastructure, information and anything else that is used for a concession received from the State must also be available to third parties if the monopolist uses them (in any case through a separate company) also for the liberalized activities. There was a recent case in which the Antitrust Authority warned Poste Italiane from failing to offer, upon explicit request, to a competitor of the subsidiary Poste Mobile access, on equivalent terms, to the goods and services of which Poste Italiane itself has exclusive availability depending on the activities included in the universal postal service.
It was therefore a question of allowing the use of post offices for the sale of telephone services. There was no sanction and an appeal to the TAR is pending (as usual) but evidently it is better to protect oneself (also against possible actions for compensation for damages) with a law and allow for a good extension of the monopoly's strength in liberalized markets. And all the network sectors operating in monopoly would benefit from it. We will see in the coming days the conclusion of this story.
Competition law is proving to be a wonderful case of heterogeneity of ends. Born in the Enlightenment to strengthen the process of opening markets, people try to use it to close them: is it a principle of reality that asserts itself? Doesn't anyone really want the competition these days? So it seems. But we poor surviving market traders are not resigned; as Totò said, resigning is cowardice.
