The Behaviour of Dominant Firms and the Principle of Equal Opportunities: Lessons From the SEN Antitrust Saga Case Comment to the Servizio Elettrico Nazionale Judgment of the Court of Justice of 12 May 2022, Case C-377/20

Abstract

This commentary concerns the Servizio Elettrico Nazionale (SEN) case that stems from the conduct of an incumbent operator – Enel S.p.A. – called upon to confront the liberalization process of the Italian electricity market. In particular, the former legal monopolist allegedly worked to consolidate its dominant position in the electricity production market, by denying its rivals access to a resource that would have been non-replicable and of strategic importance to compete in the liberalized electricity distribution market. This ruling is of fundamental importance as the Court of Justice discusses therein the objectives of antitrust law and the notion of exclusionary abuse. Moreover, in light of the practical interpretation of the ruling, it is important to ask whether the CJEU would have developed the same reasoning if the relevant market had not concerned an industry undergoing liberalization, such as the electricity sector. The commentary closes by referencing the more recent Unilever case, where the Court of Justice seems to confirm the opportunity of applying the “as efficient competitor test” to non-price practices even, in the absence of a market liberalization process.