Esselunga/ CoopEstenseCasefrom the Italian Competition Authority to the Supreme Administrative Courtto the Supreme Administrative Court

Avv. Enrico Adriano Raffaelli

Milan, 8th July 2016

OVERVIEW OF THE PRESENTATION

1. The abuse of dominant position.

2. The main features of the large-scale distributionsector in Italy, froma competition standpoint.

3. Esselunga / Coop Estense:

� the circumstances of the case;

� theItalianCompetitionAuthority decision;

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� theItalianCompetitionAuthority decision;

� the decision of the Lazio RegionalAdministrative Court;

� the decision of the Italian SupremeAdministrative Court.

4. Final remarks.

INTRODUCTION

Esselunga / Coop Estenseis an Italian competitionlaw case concerning the large-scale food distributionsector (“grande distribuzione organizzata”, “GDO”).

As we will see, the Italian Competition Authority(“ICA”) fined CoopEstense, oneof thecooperatives

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(“ICA”) fined CoopEstense, oneof thecooperativeswhich are members of the consortiumCoop Italia,for abusing its dominant positionon the market forsupermarkets and hypermarkets in the province ofModena, preventing, or at least greatly delaying, theentry or expansion ofEsselunga, a competitor, in thisprovince.

THE ABUSE OF DOMINANT POSITION (EU LAW )

Article 102 of the Treaty on the Functioning of theEuropean Union (“TFEU”) reads as follows:

“Any abuse by one or more undertakings of adominantposition within the internal marketor in a

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dominantposition within the internal marketor in asubstantial part of it shall be prohibitedasincompatible with the internal market in so far as itmay affect trade between Member States […]”.

THE ABUSE OF DOMINANT POSITION (ITALIAN LAW )

Article 3 of the Italian Competition Act(Act No. 287/1990)largely corresponds to Article 102 TFEU.

Article 1(1) of the same Act lays down the ‘single barrier’principle (barriera unica): Italian competition lawshall beappliedonly whenEU competitionlaw doesnotapply.

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appliedonly whenEU competitionlaw doesnotapply.

Article 1(4) states that the relevant provisions of the Act itselfconcerning anticompetitive agreements, abuse of dominantposition and mergers shall be interpreted in the light of theEU competition principles.

THE DEFINITION OF ‘DOMINANT POSITION ’

The ‘borders’ of the concept of abuse of dominant positionhave been specified by the European Court of Justice, withseveral judgments aimed at clarifying the situations in whichan undertaking violates Article 102 TFEU.

In United Brands(case 27/76), the Court of Justice definedthe ‘dominant position’ as“a positionof economicstrength

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the ‘dominant position’ as“a positionof economicstrengthenjoyed by an undertaking which enables it to preventeffective competitionbeing maintained on the relevant marketby giving it the power to behave to an appreciable extentindependentlyof its competitors, customers and ultimately ofits consumers”.

THE RELEVANT MARKET

In order to establish a dominant position, it is necessary todetermine, in advance, therelevant marketin which the marketpower of the dominant undertaking is measured.

The relevant market is composed of:

� a relevant product market, which comprises all those productsand/or services which are regarded as interchangeable orsubstitutable by the consumer by reason of the products'

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substitutable by the consumer by reason of the products'characteristics, their prices and their intended use;

AND

� a relevant geographic market, which comprises the area in whichthe firms concerned are involved in the supply of products orservices and in which the conditions of competition aresufficiently homogeneous.

KEY INDICATORS OF A DOMINANT POSITION

As stated by the Court of Justice, a dominant position “derives froma combination of several factorswhich, taken separately, are notnecessarily determinative” (United Brands, case 27/76).

These factorscan be,inter alia:

� market shareof theundertaking;� market shareof thecompetitors;� degree of potential competitionon the part of competitors;� ‘buyerpower’(i.e. bargainingpowerheldby thebuyers);

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� ‘buyerpower’(i.e. bargainingpowerheldby thebuyers);� behaviorof the undertaking on the market;� a technological advantage;� the benefitsof being part of aninternational group of companies;� an excess productive capacity;� a high level of vertical integration;� a highly developed sales network;� economies of scale;� the stage of development of the market;� a trademark having a reputationandconsumer loyaltytowards that trademark.

THE DEFINITION OF

‘ABUSE OF DOMINANT POSITION ’

The concept of abuse of dominant positionresultingfrom the case-law of the Court of Justice iscomposed of three main elements:

(i) theobjective natureof the abuse;

(ii) the special responsibility of the dominant

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(ii) the special responsibility of the dominantundertaking;

(iii) the irrelevance of the demonstration of theanticompetitive effectsof the abuse.

i) THE OBJECTIVE NATURE OF THE ABUSE

In Hoffmann-La Roche(case 85/76), the Court of Justicestated that:

“The concept of abuse is an objective conceptrelating to thebehaviorof an undertaking in a dominant position which issuch as to influence the structure of a marketwhere, as aresult of the very presenceof the undertakingin question,the

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result of the very presenceof the undertakingin question,thedegree of competition is weakenedand which, throughrecourse to methods different fromthose which conditionnormal competition in products or services on the basis of thetransactions of commercial operators, has the effect ofhindering the maintenance of the degree of competitionstillexisting in the market or the growth of that competition”.

ii) T HE SPECIAL RESPONSIBILITY OF THE

DOMINANT UNDERTAKING

In Michelin (case 322/81), the Court of Justice elaborated thetheory of the “special responsibility” of the dominantundertaking, asserting that:

“A finding that an undertaking has a dominant position is notin itself a recriminationbut simplymeansthat, irrespectiveof

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in itself a recriminationbut simplymeansthat, irrespectiveofthe reasons for which it has such a dominant position, theundertaking concerned has a special responsibilitynot toallow its conduct to impair genuine undistorted competitionon the common market” .

iii) T HE IRRELEVANCE OF THE

ANTICOMPETITIVE EFFECTS OF THE ABUSE

Finally, in Michelin (case T-203/01) the Court of First Instance(nowthe General Court of the EU) stated that:

“ for the purposes of applying Article 82 EC[now Article 102TFEU], establishing the anti-competitive object and the anti-competitive effect are one and the same thing. If it is shownthat the objectpursuedby the conductof an undertakingin a

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that the objectpursuedby the conductof an undertakingin adominant position is to limit competition, that conduct willalso be liable to have such an effect”.

This principle has been confirmed by the Court of Justice inits subsequent case-law.

THE LARGE -SCALE FOOD DISTRIBUTION SECTOR

The GDO sector plays a central role in national economic systems:� it is one of the main sectorsin the ‘tertiary sector’(services) in

terms of employment.� it contributes to theeconomic growthof national economies for

an average rate of5% at European level.

MOREOVER

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MOREOVER

The large-scale food distribution sector is anintermediarybetweenproducers and consumers, as regards many consumer goods,particularly food.

Therefore, the performance of this sector hasimmediate effects onconsumers.

ENTRY BARRIERS IN THE GDO SECTOR

The administrative regulationsconcerning the opening ofpoints of sale basically prevent the development of largecommercial areas.

This entails:

� anadvantagefor the undertakings which already operate onthe market;

� abarrierto entrythemarketfor newoperators;

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� abarrierto entrythemarketfor newoperators;

� a risk of reducing competitive pressure on the market

risk of an increase in consumer prices.

For instance, in the provinces where Esselunga does notoperate, Coop applieshigher pricescompared with the pricesapplied by Coop itself in the provinces where Esselungaoperates.

THE IMPORTANCE OF THE AVAILABILITY OF SITES

The availability of urban areas for building points ofsale is essential in a market based on the

PROXIMITY OF COMPETITORS(the consumers regard as very important

the proximity of the points of sale)

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the proximity of the points of sale)

which means that

the ‘appropriation’of available sites is

of crucial relevance.

THE DIFFERENT POINTS OF SALE

IN THE LARGE -SCALE DISTRIBUTION SECTOR

The Italian Competition Authority, taking into accountLegislative Decree No. 114/1998, defines the different pointsof sale in the GDOsector, according to their dimensions:

1. Hypermarkets(sales area exceeding 2.500 square meters)

2. Supermarkets(sales area exceeding 400 square meters)

3. Superette(salesareaof lessthan400squaremeters)

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3. Superette(salesareaof lessthan400squaremeters)

4. Discount stores(outlets organized entirely on a self-service basis and with a very limited range of products).

In addition to these points of sale, there is also the category of“mini-markets”, ranging in size between 100 and 200 squaremeters.

THE RELEVANT MARKET

IN THE LARGE -SCALE DISTRIBUTION SECTOR

According to the ICA, in the GDO sector

- therelevant product marketsare:

� therelevant market of superettes(composed of superettesandsupermarkets between 400 and 1,500 square meters);

� the relevant market of supermarkets(composed of allcategoriesof pointsof sale);

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categoriesof pointsof sale);

� the relevant market of hypermarkets(composed ofsupermarkets between 1,500 and 2,500 square meters and ofhypermarkets).

- the relevant geographic marketgenerally corresponds to theprovince.

ESSELUNGA / COOP ESTENSE: CIRCUMSTANCES OF THE CASE (MODENA) I

- 1999: The municipality of Modena approved a urban redevelopmentproject (URP) in relation,inter alia, to theAgricultural Consortium Area(hereinafter, the “Area”), giving the possibility to realize a midsize foodstructure on the Area;

- end of 1999: in the interest of Esselunga, adetailed projectof privateinitiative was presented, providing,inter alia, for the realization of asupermarket;

- 2000: Esselunga, which was alreadyindirectly presentwithin the Area

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- 2000: Esselunga, which was alreadyindirectly presentwithin the Area(Edilmontanari), purchased, for a total amount of €17.5 billion ITL, aportion(44,000 square meters)of the Sector(amounting to72%) to build asupermarket of its own.

N.B. The remaining part of the Sector was owned by theMunicipality ofModena(about 10%) and by athird company, failed afterwards (about18%), which owned a “particle” decentralized and overlooking the railway,situated in the back of the main road.

ESSELUNGA / COOP ESTENSE: CIRCUMSTANCES OF THE CASE (MODENA) II

- The building of the supermarket by Esselunga was subject tothe approval of the detailed project of private initiative, whichneeded theconsentof all the co-owners parties of the Area.

- February 2001: Coop Estense purchased fromthe bankruptcyof the third company the ownership of the Area “particle”(18%), paying 23 billion ITL, price five times higher than

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(18%), paying 23 billion ITL, price five times higher thanthe market value and anyway higher than the appraisal valueof the “particle” and similar to the one paid for the portion ofthe Area of Esselunga, which however counted for the 72%.

- March 2001: Coop Estense officiallyopposed to theapproval of the detailed project of private initiative.

ESSELUNGA / COOP ESTENSE: CIRCUMSTANCES OF THE CASE (MODENA) III

- 2001 - 2004: Esselunga and Coop Estense were invited bythe Municipality of Modena to find an agreement in order toallow the progress of the Area recovery project:unsuccessfulattempt.- 2004: the Municipality of Modena deliberated the final non-approval of the private initiative detailed project, presented inthe interestof Esselunga, with theconsequentparalysis of all

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the interestof Esselunga, with theconsequentparalysis of allthe Sector recovery works.

- At the time of the ICAdecision: the Area was still in a stateof deadlock: the Municipality of Modena was evaluating todefinitively modify the intended use of the Area.

ESSELUNGA / COOP ESTENSE: CIRCUMSTANCES OF THE CASE (VIGNOLA ) I

- 2002: Esselunga concluded anagreementwith a real estate company,owner of an area in Vignola, in order to build abig supermarket(2,500square meters).

- 2003: The real estate company, in the interest of Esselunga, presented tothe Municipality of Vignola a proposal for avariation to the PRG, in orderto realize the supermarket, committing to participate in the construction ofa school.

- March2005: theMunicipal Councilof Vignola approvedtheproposalof

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- March2005: theMunicipal Councilof Vignola approvedtheproposalofthe real estate company and set, for the8th April 2005, the MunicipalCouncilmeeting for the adoption of the proposed variation to the PRG.

- 7th April 2005: Coop Estense sent aletter to the Mayor of Vignola,expressing its intereston the same area(in order to be able to transfer itssupermarket, which was already located in a close area) at the sameconditions (promising to contribute to the construction of the school).

ESSELUNGA / COOP ESTENSE: CIRCUMSTANCES OF THE CASE (VIGNOLA ) II

- 8th April 2005: the Municipal Council of Vignolapostponedthediscussion of the proposed variation to the PRG, in order to be able toassess the proposal submitted by Coop Estense.

- 11th April 2005: the Municipal Council of Vignolawithdrew theresolution adopting the proposed variation to the PRG submitted by thereal estate company in the interest of Esselunga andpostponed anydecision, as the Coop Estense proposal had established a “new fact”, whichrequiredanevaluation.

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requiredanevaluation.

- 2008: Coop Estense announced the purchase of the real estate companyand became theowner of the preferential interest areaof Esselunga.

- At the time of the ICA decision: Coop Estense had not realized anythingon the acquired area, which therefore was still in a state of deadlock.

N.B. Meanwhile, Coop Estense purchased another area in order to realize asupermarket in the Municipality of Spilamberto, close to the one ofVignola, which was subsequently approved.

THE OPENING OF THE PROCEEDINGS

Following the “complaints” of Esselunga, published on several nationalnewspapers, the ICA intervened with a request for information sent toEsselunga in order to collect data on the case.

Further to the answer of Esselunga the ICA started a proceedings pursuant toArticle 3 of the Italian Competition Act (Act No. 287/90) againstCoopEstense(with dawn raids at the Coop Estense premises as well as in the officesof other subjects involved in the affair, including the Municipalities and CoopItalia).

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The ICA assumed that:

“Coop Estense,dominant operator in the hypermarkets and supermarketsmarkets of the Province of Modena, set up anunique excluding strategyconsisting of obstructive and delaying behaviors, with the aim to prevent,even participating in ongoing administrative proceedings, the starting ofnew commercial activities on areas already in the availability of Esselunga(in the Municipalities of Modena and Vignola)”.

THE RELEVANT MARKET

According to the ICAfindings, in caseEsselunga / CoopEstensetherelevant product marketswere:

� the relevant market of supermarkets

AND

� therelevantmarketof hypermarkets

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� therelevantmarketof hypermarkets

Therelevant geographic marketwas the province of Modena.

THE DOMINANT POSITION I

According to the ICA the dominant position of Coop Estense was confirmed by thefollowing structural elements:

- high market shares(hypermarkets: over 66%,i.e. 4-5 times higher than the one ofthe direct competitor; supermarkets: over 47%,i.e. twice higher than the one of thedirect competitor);

- deep rootsin the cooperative area (born in 1989 and with more than 250,000members);

- extremeconsumersloyalty (oftentheyarealsomembers);

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- extremeconsumersloyalty (oftentheyarealsomembers);

- strength of the Cooptrademarkand of its reputation;

- possibility to spoil thecapacityand thenegotiation powerof Coop Italia for thecentralized supply in the providers / negotiations;

- extremeintegrationof the Coop system at national level ;

- greatfinancial and cash availability, thanks to fiscal privileges for cooperatives’;

- existence ofadministrative barriers(long delays for authorizations and lack oftechnically and economically established areas).

THE DOMINANT POSITION II

The dominant position of Coop Estense has been confirmed also on thebasis ofbehavioral standards:

- it is sufficient to verify whether the undertaking “behaves to anappreciable extent independently of its competitors” ( i.e. if it has andpreserves a substantial market power compared to its competitors);

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- the dominant positionpersisted over time:

� considering a temporal arch of 10 years, the Coop Estense shareswereconstantor evenstrengthened;

� the follower competitors shares were 4-6 times inferior in thehypermarkets and 7 times in the supermarkets and they wereconstantly under 15% with regard to hypermarkets and under 8%with regard to supermarkets.

ELEMENTS FOR CONSIDERING THE CONDUCT

AS ABUSIVE I The behavior of Coop Estense wasNOT rationalbecause:

- in Modena:

� Coop Estense hasnot submittedtenders, and in any case hasnot submittedacceptable tenders, to purchase the Area when it would have had thechance to do so;

� no evidence of previous interestfor the Area until 2001, when CoopEstense was aware of the possible acquisition by Esselunga;

� CoopEstensealreadyhadtwo pointsof salecloseto theArea;

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� CoopEstensealreadyhadtwo pointsof salecloseto theArea;

- in Vignola:

� the offer to Coop Estense (identical to the one of Esselunga) was carriedout at the endof the public administrative procedure started by Esselungaseveral years before;

� Coop Estense didnot have the ownershipof any area to offer;

� Coop Estensealready had two points of saleclose to the Area.

ELEMENTS FOR CONSIDERING THE CONDUCT

AS ABUSIVE IIThe behavior of Coop Estense wassuitable to prevent (or in any case delay) theentry of Esselunga in the Market of the Province of Modena:

- in Modena:

� the argument of the unlawfulness of the detailed project of private initiativesubmitted by Esselunga wastotally instrumental� technical problemscould be solved;

� the solution proposed by Coop Estense (exchange of areas) was neithereconomically rational nor technically possible;

� without a modification of the administrativerules of the Area, the veto

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� without a modification of the administrativerules of the Area, the vetoright acquired by Coop Estense was suitable to prevent the approval of anyrecovery project in favor of Esselunga;

- in Vignola:

� the Municipality had no other choice but to take note of the Coop Estenseexpression of interest (innovation element);

� The Coop behavior wassuitable in itself to delaythe decision on thepossibility to build in the area and therefore the entry in the market of acompetitor.

ELEMENTS FOR CONSIDERING THE CONDUCT

AS ABUSIVE IIIThe behavior of Coop Estense had amanifest excluding purpose:

- in Modena:

� Coop Estensealready knew, when it purchased the “particle”, that themajor portion of the Sector was owned by Esselunga and this “particle”would never have allowed Coop Estense itselfto build a new point of sale(it was possible to buildonly one supermarketin the Sector and theeconomic interests of Coop Estense and Esselunga weremanifestlyopposed);

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opposed);

� Coop decided to pay a great amount of money (5 times higherthan thesales value) only to acquire the “right of veto”;

- in Vignola:

� Coop Estense decided to participate in the ongoing proceedingONLY atthe endof the evaluation procedure concerning the project submitted byEsselunga (sending the letterthe day beforethe meeting andfour daysbefore the last dead linefor the authorization);

� Coop Estense behaved in a totally different way in the close Municipalityof Spilamberto.

ELEMENTS FOR CONSIDERING THE CONDUCT

AS ABUSIVE VI

The Coop Estense behavior represented anunique excludingstrategy:

- it manifested systematically in the event of competitors’attemptsto open sales point in the Province of Modena;

- it had the same structure and intent: prevent or delay thepossibilityto build on theareasalreadyownedby Esselunga.

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possibilityto build on theareasalreadyownedby Esselunga.

� OBJECTIVE : to avoid the entry of Esselunga into the marketand to increase the costs of the market entry for a competitor(“raising rivals’ costs”).

THE DECISION OF THE ICA I

By its decision of 6th June 2012, the ICA found that Coop Estensehad abused its dominant position and imposed afine of €4,664,896,as well as aninjunction to remove the effects of the anticompetitiveconduct.

In particular, the Competition Authority found that Coop Estensesystematically blockedattempts by Esselunga to open new foodretail shops,in areaswhich werepotentiallyideal for openingsuch

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retail shops,in areaswhich werepotentiallyideal for openingsuchshops and that were available, also intervening in administrativeprocedures started by Esselunga in order to obtain the necessarypermits.

The Competition Authority therefore stated that, as a result of suchconduct,Coop Estense maintained or even reinforced its dominantposition in the relevant market.

THE DECISION OF THE ICA II

- CaseEsselunga / Coop Estenseconstitutes thefirst time in which theundertaking enjoying a dominant position (Coop Estense) was orderednot only to bring the infringement to an end, but alsoto be cooperativein the future, in such a way as to permit the entry of Esselungaintothe market.

- Furthermore, the Municipal Authority was asked to “consider verycarefully any decisions it might adopt, which could nullify, or attenuate,theeffectsof theobligationsimposedonCoopEstense” .

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theeffectsof theobligationsimposedonCoopEstense” .

- In particular, the ICA established that “any decision by the municipalauthority aimed at changing the intended purpose of the areamust givedue consideration to the obligation imposed by the Authority on CoopEstense – in terms ofgenuine collaboration to enable early access tothe marketby Esselunga – avoiding to frustrate the content of suchimposition”.

FURTHER DEVELOPMENTS

- As a matter of fact, thanks to the intervention ofthe Italian Competition Authority, with thedecision confirmed by the Supreme AdministrativeCourt, Esselunga is nowworking towards theopeningof apointof salein Modena.

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openingof apointof salein Modena.

- The newpoint of sale will be inaugurated in 2017.

THE DECISION OF THE

LAZIO REGIONAL ADMINISTRATIVE COURT

Upon Coop Estense’s appeal, in August 2013, the ICA’s decisionwas overturned by TAR Lazio (“Tribunale amministrativoregionale” – Lazio Regional Administrative Court).

The Regional Administrative Courtannulled the fineimposed bythe ICA on the ground that, although a causal link and an exclusiveeffect are essential elements of an infringement under Article 3 ofAct no. 287/90, ICA hadfailed to provideevidencefor a causallink

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Act no. 287/90, ICA hadfailed to provideevidencefor a causallinkbetween the Coop Estense’s conducts and the exclusion ofEsselunga.

In fact, according to TAR Lazio, the negative outcome ofEsselunga’s applicationsdid not flow directly from the oppositionof Coop Estense, since other circumstances, such as the opinionissued by other administrations involved, played a decisive role.

THE DECISION OF THE

ITALIAN SUPREME ADMINISTRATIVE COURT I

The Italian Supreme Administrative Court (“Consiglio diStato”) overturnedthe TAR Lazio decision, dismissing theaction brought by Coop Estense against the ItalianCompetition Authority decision, which was thereforeconfirmed.

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The Supreme Administrative Court adopted an approachaimed atpursuing the exclusionary behavior of Coop Estensein a sector,i.e. the large scale food distribution sector, whichwas already characterized by a notable lack of points of sale.

THE DECISION OF THE

ITALIAN SUPREME ADMINISTRATIVE COURT II

The Supreme Administrative Court also introducedimportant newelements into the existing case-law, statingthat:

“every competitor of an undertaking being in a dominantposition has the right not to be excluded as a result of theunlawful conduct of the dominant undertaking, apart

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unlawful conduct of the dominant undertaking, apartfrom a possible substantive reduction of competition orefficiency of the market caused by such conduct, becauseonly the conduct of the dominant undertaking must beconsidered. In other words, the infringement may be anillicit of mere conduct”.

THE DECISION OF THE

ITALIAN SUPREME ADMINISTRATIVE COURT III

According to the Supreme Administrative Court, in caseEsselunga / Coop Estense, in particular, the concept of“special responsibility”consisted in the “duty to considerlocal planning regulations and to refrain frominterfering withthemor with the availability of the lands concerned,leaving

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themor with the availability of the lands concerned,leavingthem available to other hypothetical competitors (andcompeting with such competitors properly)”.

THE DECISION OF THE

ITALIAN SUPREME ADMINISTRATIVE COURT IV

Adversely interfering under an administrative point of viewwould in fact have amounted to adopting an “obstructiveconduct, aimed at creating a barrier to entry to the relevantmarket and therefore in practice to preclude one of theessential conditions of competition, that is the freedomofentryinto themarket” .

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entryinto themarket” .

CaseEsselunga / Coop Estenserepresents a crucialturningpoint, since it shows that in theGDO sectorit is necessary toguarantee also the proper economic conduct of dominantundertakings, which havespecific competitive dutiestowardstheir competitors.

FINAL REMARKS I

As for the abusive nature of Coop Estense’s conducts, theSupreme Administrative Court recalled the consolidated caselaw of the Court of Justice (for instanceTomra case),clarifying that a finding of abusedoes not require the proof ofthe actual effects of the conduct. Indeed, in order to establishsuch an infringement it is sufficient to prove that the contestedconductis merelycapableof restrictingcompetition.

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conductis merelycapableof restrictingcompetition.

Notwithstandingthe above the Supreme Administrative Courtconfirmed that in the case at issuethe exclusionary effectshas been concretely reachedin consideration of the fact thatCoop Estense succeeded in avoiding the entrance of Esselungain the relevant market of the Modena province.

FINAL REMARKS II

Furthermore, the Supreme Administrative Court also recalled theAstraZenecajudgment (at EU level) and thePfizer case (at Italian level)according to whichthe illegality of an abusive conduct is unrelated to itscompliance or non-compliance with other legal rules.

In many cases, in fact, abuses of dominant positions consistof a behaviorwhich is otherwise lawfulunder branches of law other than competitionlaw. The judge held that otherwise legal conductsmight still breachcompetition rules, where the circumstances of the case suggest that adominantundertakingactivelysoughtcompetitors’foreclosurethroughthe

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dominantundertakingactivelysoughtcompetitors’foreclosurethroughtheadoption of commercial strategies which cannot be economically justified.

Therefore, the Supreme Administrative Court found that theICAconvincingly demonstrated that Coop Estense – rather than merelyprotecting its commercial interest – actively strived to exclude Esselungafrom the market while Coop Estense, following its special responsibility,should have behaved differently: in particular, it should have not interferedin the administrative procedure started by the competitor.

FINAL REMARKS III

In conclusion,

the Coop Estense judgment represents asignificantdevelopment in Italian antitrust law, since itconsolidatesthe existing case law on “abuse of

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consolidatesthe existing case law on “abuse ofright”, in terms ofabuse of administrative proceduresemerging both at European (Astra Zeneca) andnational (Pfizer) levels as a newfrontier of antitrustenforcement in unilateral conduct cases.

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