Resale Price Maintenance (RPM) in Italy
In the Italian antitrust system there are no specific provisions regulating each single type of possible vertical agreement related to prices (such as illegal RPM). Therefore, the Italian Antitrust Authority (the IAA) usually refers to the Block Exemption Regulation (BER) and the Guidelines on vertical agreements in its decisions concerning a violation of Article 101 TFEU (the Guidelines), as no guidelines on RPM have been published by the Italian competition authorities.
The illegal RPM practice has been comprised among the hard-core restrictions, namely restrictions of competition by vertical agreements which are seen as being particularly serious.
The imposition of a fixed or minimum resale price may be carried out not only directly but also indirectly, i.e. through agreements fixing the distributor’s margin or the maximum level of discounts the distributor can grant from a prescribed price level, and through threats, intimidation, suspension of deliveries in relation to observance of a given price level indicates indirect means of imposition of price.
Italian case law concerning RPM
There have only been a few cases concerning RPM in Italy.
A recent general trend in Italy adopted by the IAA in cases where the proceedings’ sole object is illegal RPM is to permit the company to ask and obtain if any the closure of the proceedings with the commitments. The IAA tends to start a dialogue with the undertaking(s) involved in order for them to evaluate the possibility to ask and obtain the closure of the proceedings with commitments. In this manner, the IAA appears to aim at eliminating the restrictive consequences of illegal RPM conducts and to concentrate its main activities on cartels and abuses of dominant position.
Among the other cases on RPM there is:
- I813 – Restrizioni alle Vendite On Line di Stufe (April 18, 2018): This case concerned the online sale of heating equipment to distributors. The IAA deemed that the trading conditions applied by the suppliers may infringe Italian competition law insofar as they fix a minimum resale price to the distributors of their products, namely providing list prices which
indicate the maximum applicable percentage of discount.
- In this respect the IAA, referring to the relevant Guidelines, observed that “in the framework of a selective distribution system, the reseller should be able to freely provide for selling condition to the final customers, including internet sales”. Moreover, “with respect of the setting of a fixed or minimum price, this practice can be performed either directly or indirectly, as agreements fixing the maximum level of discount the distributor can grant from a prescribed price level, making the grant of rebates or reimbursement of promotional costs by the supplier subject to the observance of a given price level by the buyer”.
- Facing the opening of the proceeding, the cartel participants offered to adopt commitments, aimed at avoiding to fix neither directly nor indirectly resale price for the distributor and to limit the online sale policy of the distributors. The IAA accepted these commitments.
For another recent decision on this matter, see I854 – SOFAR / Fornitura integratori alimentari – December 3, 2021.