Universal services and leverage of the dominant position in the liberalized postal services

Abstract

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