Sustainability and Competition Law in Italy

Abstract

Before outlining the sustainability initiatives with a competitive impact that have been undertaken at the Italian level by the various competent authorities, it is necessary to briefly clarify some preliminary notions concerning the concept of sustainability and ecological transitions, the role that these issues have in the framework of competition law, and the role played by the Italian Antitrust Authority (IAA) in the context of ecological transition and in explaining how in concrete terms sustainability issues intersect with antitrust issues. Finally, some specific cases related to sustainability issues investigated by the IAA will be mentioned.

1 Introduction

Before outlining the sustainability initiatives with a competitive impact that have been undertaken at the Italian level by the various competent authorities, it is necessary to briefly clarify some preliminary notions concerning the concept of sustainability and ecological transitions, the role that these issues have in the framework of competition law, and the role played by the Italian Antitrust Authority (IAA) in the context of ecological transition and in explaining how in concrete terms sustainability issues intersect with antitrust issues. Finally, some specific cases related to sustainability issues investigated by the IAA will be mentioned.

1.1 The Concept of Sustainability and Ecological Transition

The concept of sustainability is inextricably linked to the concept of ecological transition, which is one of the fundamental pillars and objectives of policies at the European and national levels underpinning the new Italian and European development models.

For this reason, to fully understand the meaning of this expression, reference should be made to the Recovery and Resilience Facility of 12 February 2021 (Regulation 2021/241) establishing the Pandemic Recovery and Resilience apparatus, as well as to the Piano Nazionale di Ripresa e Resilienza – National Recovery and Resilience Plan (PNRR) of April 2021, which constitutes its implementation at the Italian level.

From this perspective, the concept of ecological transition and thus sustainability constitutes an economic model aimed at increasing the competitiveness of the production system of goods and services, stimulating new entrepreneurial activities, and encouraging the creation of stable employment.¹

1.2 The Role of Sustainability in Competition Law

The current economic context is characterised by the transformation of production activities under the impetus of environmental sustainability policies. Business choices towards sustainable innovation of production processes are also conditioned by the increasing environmental awareness of consumers.

It is in this sense that sustainability is an element on which to develop competition on the merits, i.e. a competitive situation from which consumers profit through lower prices, better quality, and a wider choice of new or more efficient goods and services.²

The protection of competition can be seen as complementary to public interest in environmental safeguard and sustainability insofar as antitrust and consumer protection rules are instrumental in enhancing the environmental sustainability of economic activities.

The Authority itself noted that competition can contribute to sustainable development by complementing existing instruments, such as regulation and taxation, to foster the transition process towards an environmentally sustainable growth model. Competitive pressure encourages companies to make the best use of available resources by producing at the lowest cost; it favours a better allocation among companies of production factors, including natural resources; it allows the most virtuous companies that adopt more energy-efficient technologies to remain on the market. In addition, competition stimulates firms to innovate by improving production processes and creating new products that limit CO2 emissions and use energy from renewable sources.³

In this context, the task of competition law to correctly balance the need to ensure dynamic and competitive markets with the promotion of investments by companies in terms of environmental sustainability remains in any case. The Authority has declared its readiness to apply competition law in evolutionary terms and to assess, in coordination with the European Commission and the other authorities of the Member States, the possible expansion of the instruments available to support development that is both sustainable and competitive at the same time.⁴

1.3 The Role of the IAA in the Ecological Transition

Concerning the role played by the Authority in terms of stimulation and impulse for the development of policies on sustainability and competition, special mention should be made of the advocacy activity carried out by the IAA. The Italian antitrust law provides that the Authority’s powers include the power to report to the government, Parliament, regions, and local authorities regulatory and administrative measures already in force, or in the process of being drafted, that introduce restrictions on competition.

In report S4143 of March 2021 pursuant to Articles 21 and 22 of Law 287/90, concerning a series of competition reform proposals for the Annual Market and Competition Law, there is a section on some reform proposals to facilitate the achievement of sustainability objectives.⁵ In this context, the IAA highlighted how competitive pressure can contribute to the promotion of sustainable development and focused its proposals on the infrastructural nodes of sustainability, namely:

• (a) infrastructures for recharging electric cars to ensure that the necessary conditions are in place to ensure that no distortions are created in the development phase of the sector that could jeopardise the efficient functioning of competition in the future (see paragraph 3);

• (b) differentiated waste management in the sense of introducing regulatory changes to eliminate unjustified discrimination between public and private operators in municipal waste management and prevent the notion of integrated waste management from being misused (see paragraph 3);

• (c) incineration/waste-to-energy plants, proposing to amend Legislative Decree no. 152 of 3 April 2006, to introduce appropriate measures to further streamline the bureaucracy of the authorisation processes, providing for greater recourse to forms of self-certification at each authorisation stage and the certainty of the timeframe for the conclusion of the procedures also through the activation of substitutive powers in the event of inertia on the part of the public administrations concerned; as well as providing, through legislation, appropriate incentives and/or compensation for the populations and local authorities affected by waste-to-energy plant developments, without introducing improper extensions of price regulation to activities that can be guaranteed by the market.

• (d) a proposal to eliminate the improper weight of system charges on the electricity sector, gradually bringing the financing of the various items, including those incentivising renewable energy sources, which could selectively burden the consumption of fossil fuels in heating and transport, back into the general taxation sphere. In this sense, the Authority has proposed a reform of the financing for renewable energies that would exclude system charges from the electricity bill and instead envisage forms of taxation consistent with the pursuit of environmental principles, thus providing for these charges to be selectively borne on the consumption of fossil fuels in heating and transport and resorting to appropriate gradualness in the implementation of the reform.

More recently, in its report AS1824 of 31 March 2022, the IAA addressed, in particular, some issues relating to the electricity sector: the development and upgrading of networks, both nationally (energy transmission) and locally (energy distribution), are fundamental preconditions for the development of renewable energies; the development of second-generation smart metres, in this perspective, will allow sellers to formulate dynamic price offers (differentiated by time bands), facilitating virtuous demand behaviour, in favour of rationalisation and reduction of consumption (so-called demand response); the final transition to the free market of domestic consumers could contribute to the proliferation of the free market in the electricity sector, which could lead to a reduction in the number of consumers, and to the development of the electricity market in the future demand response); the definitive transition to the free market for domestic consumers could contribute to the proliferation of differentiated offers to the end consumer based on consumption profiles, stimulating both energy saving and efficiency objectives and a more competitive retail market structure. In this regard, it has been observed that the sustainability of energy markets is contributing to the development of innovative services that could not only complement the pure energy commodity offered by sellers but also allow the development of new markets and the evolution of existing ones.

1.4 The Intersection Between Sustainability and Competition Law

At the legislative level, there are numerous initiatives taken by the Italian legislator that are a part of the environmental policies defined at the European and national levels and that impact competition law (see Sect. 9.2.3).

However, on a preliminary note, concerning the intersection between sustainability and competition law, it should be pointed out that almost all of the cases dealt with by the competition authorities on the subject of sustainability concern cases in which environmental sustainability is used as an expedient to implement conduct that is not quite virtuous from a competitive point of view (so-called greenwashing).

Greenwashing is a transversal issue as it may concern, with different modalities and forms, both conduct relevant to antitrust rules in breach of Articles 101 and 102 TFEU (for an analysis of the cases, see paragraph 3) and conduct relevant to consumer protection (matter that is in charge of the same IAA; for some examples of IAA measures, see paragraph 3). Greenwashing practices not only harm competition but also have environmental effects as they delay the transition to more sustainable products or make it less convenient.

In particular, as far as restrictive agreements of competition are concerned, the expression “greenwashing” refers to forms of collaboration between companies, realised through agreements falsely presented as aimed at and necessary to achieve significant environmental benefits (e.g. in terms of saving raw materials or energy resources, lower greenhouse gas emissions, etc.) to the benefit of users and/or the community. About abuses of dominant position, the expression greenwashing is used when the dominant company instrumentally uses sustainability objectives to pursue policies of market monopolisation and the exclusion of competitors.

Furthermore, the practice of suggesting, in the context of a commercial, marketing or advertising communication, in a completely generic, unverifiable or misleading manner, that a product or service is sustainable in terms of, for example, its production, packaging, distribution or disposal methods (so-called green claim) is considered an unfair commercial practice, in breach of Articles 18 and following of the Italian Consumer Code.

Further on green claims and consumer protection, it should be noted that at the national level, there is an additional form of protection provided by Article 12 of the self-regulatory code, which provides for a specific discipline on environmental protection: “commercial communication claiming or evoking environmental or ecological benefits must be based on truthful, relevant and scientifically verifiable data. Such communication must make it clear to which aspect of the advertised product or activity the claimed benefits refer”.⁶

Finally, it should be noted that a significant role in the intersection of sustainability and the protection of competition is also played by international ISO standards and public and private product certifications.

In this regard, it should be observed that the proposal for a Directive of the European Parliament and the Council amending Directives 2005/29/EC and 2011/83/EU, empowering consumers for the green transition through better protection against unfair practices and better information of 30 March 2022, will give binding force to a series of general principles, not only already established by ISO standards but which have been elaborated and applied over the years by the decisions of the IAA and IAP. In particular, reference is made to the following general principles: the prohibition of generic, misleading, and unverifiable assertions; the evaluation and provision of data necessary for the verification of assertions; the use of evaluation methods leading to reliable and reproducible results; when selecting a method for the evaluation and/or verification of an assertion, give preference to ISO standards, followed by other internationally recognised standards and methods used in industry and commerce that have been peer reviewed; the provision and preservation of supporting documentation based on the life of the product.

2 Sustainability Initiatives Undertaken at the Italian Level by the Relevant Authorities

2.1 Working Documents and Guidelines Provided by Administrative and Political Authorities

Among the working documents and guidelines provided by administrative and political authorities on the subject of sustainability, including for the implementation of the National Recovery and Resilience Plan (PNRR) (see paragraph 2.3), the following documents should be mentioned, without claiming to be exhaustive.

Circular No. 32 of 30 December 2021 issued by the Ministry of Economy and Finance (MEF) is an operational guide for compliance with the principle of not causing significant damage to the environment. This guide was issued taking into account that it is expressly established in Article 18 of EU Regulation 241/2021 that all measures of the National Recovery and Resilience Plans must comply with this principle. The guide provides guidance on taxonomic requirements, the corresponding legislation, and useful elements for documenting compliance with these requirements.⁷

Among the activities carried out by the Regulatory Authority for Energy Networks and the Environment (ARERA) are the following documents through which ARERA has expressed:

• Its comments on the Draft Law on the Annual Market and Competition Act 2021 (see paragraph 2.3), in particular concerning natural gas distribution concessions, large hydroelectric derivation concessions, the provision requiring the government to adopt a legislative decree to reorganise matters concerning local public services, as well as the provision on waste management services (Article 12)⁸

• Its guidelines on operational modalities for the first urgent application of tariff concessions to natural gas-intensive companies referred to in the Decree of the Minister of Ecological Transition No. 541/2021. The aforementioned decree defined an aid scheme under Article 44 of Regulation (EU) No 651/2014 through the redetermination, as of 1 April 2022, of the fees covering general gas system charges applied to natural gas-intensive companies, linked to the financing of measures aimed at achieving common decarbonisation targets⁹

• Its contribution to the parliamentary examination of the PNRR.¹⁰

2.2 IAA Activities on Sustainability and Advisable Actions

Instead, with particular reference to the activities carried out by the IAA, it should be noted that there are currently no specific interventions by the Authority aimed at clarifying the application of antitrust regulations on the subject of sustainability through, for example, guidelines, working papers, or individual guidance. Such an intervention on the part of the IAA would be desirable since the Authority plays a fundamental role in guiding companies through the path of ecological transition. Indeed, in the current context where sustainability issues are constantly evolving and where companies are called upon to invest and innovate in this respect, the latter needs to have a clear frame of reference for antitrust compliance purposes.

In this sense, with particular reference to business-to-business cooperation, it would be desirable, following the example of the Dutch Competition Authority, to draw up guidelines on sustainability agreements. On this point, it should be noted in particular that sustainability agreements are defined as agreements aimed at identifying, preventing, limiting or mitigating the negative impact of economic activities on people (including working conditions), animals, the environment or nature.¹¹ However, while the concept of sustainability has been finalised, the list of initiatives that could fall into this category remains open. A definition of the objectives and initiatives likely to be assessed as “sustainable” under antitrust law would therefore be useful to guide companies wishing to support sustainability investments.

On the subject of sustainability agreements, some have suggested, without prejudice to the competence of the IAA in the final assessment of sustainable agreements, the advisability of requesting a non-binding opinion from the Ministry of Ecological Transition established in Italy by Article 2, Decree-Law no. 22 of 1 March 2021, converted into Law no. 55 of 22 April 2021. The prior involvement of the governmental authority, which would give a non-binding opinion on the social merits of the agreement, could favour a faster and more conscious approval of a regulatory measure aimed at validating what has developed in a regulatory vacuum.¹²

Another tool through which the national authority could help incentivise companies to invest in sustainability is through the so-called comfort letter instrument, which would allow companies to invest while minimising the risk of antitrust violation.

Also at the level of consumer protection and, in particular, concerning green claims, taking into account the high number of cases in which the Italian Authority has sanctioned professionals for ecological statements contrary to professional correctness (see paragraph 3) and the fact that the current average consumer is an increasingly attentive and sensitive consumer to the issue of sustainability, it is hoped that the Italian Authority will define guidelines on green claims in the wake of the example of the Dutch Authority and the United Kingdom.¹³

In this context, it should be noted that, at the same time, since the risk of a speculative use of the environmental objective to pursue anti-competitive aims is high, another task of the Authority should be to counter the phenomenon of greenwashing through more intensive use of its sanctioning power, making the most of the instrument of aggravating circumstances if it is ascertained that the environmental objective has been used instrumentally to implement illegal practices.¹⁴

2.3 Legislative Initiatives on Sustainability at the National Level

In the context of national legislative initiatives concerning environmental sustainability, the recent approval of Constitutional Law No. 1 of 11 February 2022, which includes environmental protection among the fundamental principles of the Constitution, is of particular significance.

Articles 9 and 41 of the Constitution were amended by Constitutional Law No. 1 of 2022.

In particular, a new paragraph was introduced to Article 9 of the Constitution to recognise within the fundamental principles set out in the Constitution the principle of protecting the environment, biodiversity, and ecosystems, also in the interest of future generations. In this regard, it is interesting to emphasise how the concern for future generations is a hitherto unheard-of expression in the Italian constitutional text.

At the same time, Article 41 of the Constitution on the exercise of the economic initiative was amended. The amendment added, among the limits to private economic initiative, a reference to the environment, supplementing the only provision of the Constitution that the Italian antitrust law (Law No. 287/90) in Article 1 expressly refers to as a constitutional foundation. In particular, it was established that private economic initiative cannot be carried out to the detriment of health and the environment, adding these two limits to those already in force, namely security, freedom, and human dignity. Article 41 of the Constitution was also amended by reserving to the law the possibility of directing and coordinating economic activity, both public and private, for not only social but also environmental purposes.

The purpose of the amendment is, first of all, to give articulation to the principle of environmental protection, which goes beyond the mention of “protection of the environment, the ecosystem and the cultural heritage” provided for in Article 117, second paragraph, of the Constitution, introduced with the 2001 reform, in the part where it enumerates the matters over which the State has exclusive legislative competence.

Concerning national sustainability policies, mention should first be made of the Integrated National Energy and Climate Plan 2030 (PNIEC), which is the fundamental instrument at the national level of the energy and environmental policy for implementing European climate policy. The PNIEC is structured in five lines of action: from decarbonisation to energy efficiency and security via the development of the internal energy market, research, innovation, and competitiveness. On this point, it should be noted that, following the update of the European targets, a commission of experts was appointed in September 2021 to update the PNIEC targets as well as to ensure their consistency with Mission 2 of the PNRR.

The PNRR, the document that the Italian government has prepared to illustrate to the European Commission how Italy intends to invest the funds allocated at the European level under the Next Generation Eu programme, includes a package of investments and reforms divided into six missions. The projects envisaged in the mission “Green Revolution and Ecological Transition” (Mission 2) are aimed at fostering the country's green transition by focusing on energy produced from renewable sources, increasing resilience to climate change, and supporting investments in research, and innovation, and incentivising sustainable public transport. Mission 2 is divided into four components for which specific objectives are envisaged: sustainable agriculture and circular economy; renewable energy, hydrogen, grid, and sustainable mobility; energy efficiency and building upgrading; and land and water resource protection.

Taking into account the interest of the IAA in this topic, it is necessary to highlight in particular the investments destined for the development of electric recharging infrastructures. To reach the European decarbonisation objectives, a fleet of around 6 million electric vehicles is expected by 2030, for which 31,500 public fast-charging points are estimated to be necessary. The measure, therefore, aims to build the enabling infrastructure to promote the development of sustainable mobility and accelerate the transition from the traditional model of fuel-based refuelling stations to electric vehicle refuelling points. To enable the realisation of these objectives, the measure aims at the development of 7500 fast-charging points on motorways and 13,755 in urban centres, as well as 100 experimental charging stations with energy storage technologies.

In particular, concerning the issue of public infrastructures for electric recharging on national territory, mention should be made of (i) Article 57 of Decree-Law No. 76 of 16 July 2020, converted with amendments by Law No. 120 of 11 September 2020; the aforementioned article prescribes the simplification of the rules for the construction of electric vehicle charging points and stations: transparent and non-discriminatory criteria will have to be provided for the allocation of spaces and/or the selection of operators for the installation of electric car charging stations, and the regulatory obstacles that, especially from a tariff point of view, still stand in the way of the free performance of the activity of supplying electric energy for vehicle charging will also have to be overcome, and (ii) Article 1, paragraph 697, of the Budget Law 2021 (Law No. 178 of 30 December 2020), which provided for the obligation for motorway concessionaires to equip their concession networks with an adequate number of high-power recharging points within 180 days of the law coming into force.

With respect to the aforementioned provisions, the IAA, in the context of its advocacy activity (see paragraph 1.3), has proposed to amend paragraph 6 of Article 57 of Decree-Law No. 76 of 16 July 2020 and paragraph 697 of Article 1 of Law No. 178 of 30 December 2020 in order to provide, with respect to the activities of public administrations and public concessionaires, for the adoption of transparent and non-discriminatory procedures for the allocation of public spaces and/or the selection of operators for the installation of public spaces in order to provide, with regard to the activities of public administrations and public concessionaires, for the adoption of transparent and non-discriminatory procedures for the allocation of public spaces and/or the selection of operators for the installation of charging stations, identifying the price of the charging services offered as an evaluation parameter and ensuring the technological neutrality and interoperability of the installations, as well as to repeal paragraph 12 of Article 57 of Decree-Law No. 76 with the intention of ensuring a reasonable level of tariffs for the supply of electricity for recharging through the presence of a plurality of operators and genuinely competitive dynamics.

Among the legislative activities that are a part of the implementation of the PNRR are the following interventions by the Ministry of Agricultural, Food, and Forestry Policies (Mipaaf): on 13 June, a decree was issued establishing the agri-food logistics contract instrument to strengthen agri-food logistics and storage systems, reduce environmental and economic costs, and support innovation in production processes.¹⁵ In addition, on 28 June, the Ministerial Decree of 25 March 2022 was published in the Official Journal, providing the necessary directives for the launch of the “Agrisolar Park” measure, to which EUR 1.5 billion of PNRR funds are dedicated.¹⁶

Lastly, among the most recent legislative interventions at the national level, reference should be made to Draft Law No. 2469, Annual Market and Competition Law 2021, approved by the Senate on 30 May 2022 and currently under consideration by the committee. The Draft Law, which is linked to the public finance manoeuvre, consists of 36 articles, divided into eight chapters, including a chapter dedicated to competition, energy, and environmental sustainability (Chapter IV, Articles 11 and 12).

Article 11 amends Article 1, paragraph 697, of Law No. 178 of 2020 (Financial Plan Law 2021), concerning the provision of the motorway network with fast electric recharging points, stipulating that motorway concessionaires must select the operator for the installation of the recharging columns through competitive, transparent, and non-discriminatory procedures.

Article 12 introduces some amendments to the Environmental Code (Legislative Decree No. 152/2006) concerning the choice by non-household users producing waste assimilated to urban waste to use the public service operator or resort to the market (paragraph 1), the tasks of ARERA (paragraph 2), as well as the exclusion, from the list of subjects involved in the CONAI programme agreement on packaging waste, of the operators of sorting platforms (paragraph 3).

More specifically, paragraph 1 of Article 12 amends paragraph 10 of Article 238 of the Environmental Code (Legislative Decree 152/2006), which provides that the choice of using the public service manager or resorting to the market must be made for a period of no less than 5 years, reducing this minimum period to only 2 years, accepting the observation formulated by the IAA in its report no. 4143 (see paragraph 1.3). Paragraph 2 of Article 12 integrates the text of Article 202 of the Environmental Code by providing for new tasks for the Regulatory Authority for Energy, Networks and the Environment (ARERA). Paragraph 3 of Article 12 amends paragraph 5 of Article 224 of the Environmental Code, where it provides for the conclusion of a programme agreement on a national basis between CONAI and autonomous systems and all the operators in the reference sector with the National Association of Italian Municipalities (ANCI), the Union of Italian Provinces (UPI), or the management entities of the Optimal Territorial Ambit, accepting also, in this case, the observation made by the IAA in its report no. 4143.

3 Specific Cases Related to Sustainability Issues Investigated by IAA

In the experience of the Italian Antitrust Authority, there are currently no cases in which the issue of sustainability has been used by the Authority as a sword, to protect competition in general and competition with positive environmental repercussions in particular, or by companies as a shield, to protect and justify operations that are likely to produce competitive damage.

Nevertheless, in the context of the antitrust enforcement activity carried out in recent years, the Authority has shown itself to be particularly sensitive to sustainability issues: this is due to an awareness of the complementary function that competition policies can play concerning environmental protection. As mentioned above, the existence of such synergy was noted by the Authority itself in its Annual Report on its activities in 2020, where it was observed that “competition, while not having the primary purpose of promoting sustainable development, can contribute, by complementing existing instruments such as regulation and taxation, to fostering the process of transition towards an environmentally sustainable growth model”, acting as an incentive “to use the scarce resources of our planet efficiently”¹⁷ (see par 1.2).

The aforementioned antitrust enforcement activity “with an environmental background” has, in particular, addressed certain unilateral or concerted conduct, such as the hindering of the introduction of innovations that could favour a greater circularity of production processes or the implementation of sustainable mobility infrastructures or services, which could harm competition and, at the same time, the environment.

On this point, it is necessary, first of all, to recall the interventions of the Authority which have concerned the waste management market and which have resulted in support for the already mentioned circularity of the production processes in the relative sector through the maintenance of a fair competitive pressure in the economic relations between the operators concerned or through the opening to competition of previously monopolistic markets.¹⁸ These mentioned cases both involved abusive exclusion strategies implemented by consortia active in the waste collection and recycling sector to the detriment of minor operators wishing to enter the market by proposing innovative solutions.

The first of the cited cases ended with the proposal, by the Conai consortium, of commitments whose acceptance allowed new autonomous waste management systems to enter the market, thus ensuring the emergence of unprecedented recovery and recycling methods for special plastic waste and thus contributing to the achievement of the sustainability objective represented by a broader development of the circular economy. In the second case cited, on the other hand, the Corepla consortium was fined more than EUR 25 million for obstructing the market access of Coripet, a consortium that had introduced an alternative and innovative plastic recycling system, which would have led to an increase in the collection and recycling of differentiated waste, especially in geographical areas with lower environmental performance.¹⁹

A further example of the interconnection between antitrust and environmental objectives is a proceeding concerning an alleged cartel involving different levels of the spent lead-acid accumulator recovery chain. This agreement, aimed at guaranteeing the historical members of Cobat and Cobat Ripa, active in the spent vehicle lead-acid accumulator recovery chain, would have a continuous flow of waste at controlled prices and exclude competing collection systems from the market.²⁰

The Authority concluded the proceedings by finding that the remedies proposed by the companies involved were adequate to address the competition concerns expressed in the initiating order. Particularly from an environmental point of view, it is necessary to highlight the important structural measure presented by the parties concerning the definitive divestment of the shares held by the smelters in Cobat and the exercise by them of their right to withdraw from Cobat Ripa, thus making Cobat a producers-only system, as is the case for all other national operators of spent accumulator collection. More generally, the proposed remedies were considered capable of creating the conditions for the realisation of competitive dynamics in the recovery chain of these highly polluting materials that are also more efficient from an environmental point of view.

In the same line as the above-mentioned case is a case in which the Authority accused the Erion Wee consortium (a collective waste management system for electrical and electronic equipment) of exclusionary abuse on the supply side in the markets for compliance services provided to producers of electrical and electronic equipment and on the demand side in the markets for waste treatment services for electrical and electronic equipment supplied by recovery facilities to collective systems.²¹ The alleged abusive conduct engaged in by the consortium was described by the IAA as an impediment to effective competition in the supply of services necessary for producers to be able to comply with their environmental obligations; the procedure was concluded with the acceptance of the commitments of the consortium.

The IAA’s activity also concerned proceedings with a potential impact on the decarbonisation process. In particular, regarding this issue, the Authority assessed the environmental implications of potentially harmful conduct by companies active in the electric mobility sector. In a case the IAA investigated an alleged abuse perpetrated by Google against Enel. This abuse consisted in the refusal, motivated by the intention to protect Google Maps’ business model, to give access to the Android Auto platform to the search and navigation app JuicePass (formerly Enel X Recharge), implemented by Enel for location and booking services of electric car charging stations. In the context of the measure, issued after the investigation, with which the Authority imposed a fine of over 100 million euro on Google, the Authority made some environmental considerations. In particular, it was noted that the contested conduct consisted in an exclusionary abuse whose effects affect consumer welfare and market structure and may hinder innovation in services related to electric mobility provided through apps, and it was then found that the conduct could influence the development of an adjacent sector, i.e. that of electric mobility, in a crucial phase of the latter's start-up, about the development of a network of infrastructures for recharging electric cars adequate to the phase of growth and evolution of the demand for recharging services, with repercussions also on a more rapid diffusion of electric vehicles and the transition towards a more environmentally sustainable mobility.²²

Concerning the assessment of mergers between companies, the IAA has not yet had to deal with the most critical cases, i.e. those that require the Authority to perform a difficult trade-off between the benefits to the environment on the one hand and the harm caused to competition on the other. Nonetheless, the IAA has also had to deal with sustainability issues when assessing certain merger operations.

In this regard, two recent operations authorised by the Authority are particularly noteworthy.

The first, which concerned the electric mobility sector, concerns the establishment of a joint venture between the company Enel X and the car manufacturer Volkswagen, aimed at installing and managing, in the domestic market, 3000 ultra-fast public charging points for recharging the batteries of electric cars (so-called high-power charge (HPC)).²³

In particular, the initiating investigative decision hypothesised that the transaction was likely to constitute or strengthen a dominant position in the market in which JVC will be active and/or in two vertically related markets, that of the provision of eMobility services (EMP) in Italy and that of the production and marketing of automobiles (OEM), with particular reference to the production and marketing of electric cars (BEV) in Italy. The transaction at issue is relevant insofar as it is a part of a legislative and regulatory context marked, both at the Euro-Union and national levels, by the promotion of electromobility as an appropriate measure to contribute to the pursuit of the decarbonisation objectives assumed at the European level and mitigate the environmental impact in the transport sector. The Authority carried out an in-depth investigation of the markets involved and in particular of the market for the construction and management of charging infrastructures for public or private HPC electric cars with public access (so-called CPO market) since the latter is a market in an embryonic state susceptible to strong expansion in the coming years.

In conclusion, the Authority has cleared the transaction in question, recognising the concrete interest in the entry of other major players into the HPC market, which will also be able to benefit from the public incentives provided by the PNRR for the development of HPCs and from sectoral regulation that guarantees non-discriminatory access to electricity distribution networks.

A second merger was carried out between Bolton Manitoba, a company belonging to a multinational group active in the production and marketing of consumer products, including products for household cleaning and personal care, and Madel, an Italian company of which the former acquired exclusive control, which markets a wide range of similar products with a low environmental impact, which can be defined as “green products”.²⁴ With particular reference to the latter case, within the measure by which the Authority authorised the merger, it questioned, for the first time, the possibility/necessity of identifying a separate market for “green” products. The doubt raised by the IAA, which has been resolved in the negative in the present case, is, however, emblematic of how the issue of sustainability can, for example, condition the very definition of the relevant market when taking into account the impact of environmental issues on consumer preferences. From this point of view, if a given consumer good was the result of sustainable production methods and at the same time there was a low degree of substitutability between traditional and “green” products, it would be conceivable to identify different markets for the same type of good.

Lastly, it is worth mentioning several cases in which the IAA, in the application of consumer protection law, has sanctioned certain companies that have adopted greenwashing strategies, i.e., put in place unfair commercial practices to convey a deceptively positive self-image to the consumer in terms of environmental impact. On this point, it is interesting to note the transversal nature of this practice, where, reviewing the decisions taken on the subject by the Authority, it can be seen how companies operating in the most diverse sectors, such as the food sector²⁵ or transport and mobility²⁶ or even personal hygiene,²⁷ have resorted to it.

Among the interventions of the IAA carried out through the instrument of moral suasion, it has to be mentioned the case in which the Authority invited EasyJet to remove the profiles of possible unfairness related to the fact that it advertised, as a characteristic of its typical activity, any environmental initiative unrelated to it and presented its activity with a neutral environmental footprint or characterised by an absence/exiguity of emissions. Following the aforementioned solicitation, the company disclosed that it had already voluntarily changed the text of some pages on its website in which it describes its commitment to the environment.²⁸