By Flavia Sabbatini and Agnese Colucci – Domestic and International Agreements Area
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The Annual Market and Competition Law 2021 (Law No. 118/2022) introduced in Article 33, which amends Article 9 of Law No. 192/1998, important changes concerning the abuse of economic dependence with particular reference to digital platforms.
The law came into force last 31 October and is aimed at adapting the rules on the abuse of economic dependence in order to counteract the exercise of abusive practices by digital platforms.
As a general rule, Article 9 of Law No. 192/1998 prevents companies from abusing the status of economic dependence in which their customers or suppliers may find themselves. The purpose of the restriction is to protect “weak parties” against the bargaining power of “strong contractual partners”.
The new rules set out in Article 33 of Law No. 118/2022 introduce a presumption of economic dependence in commercial relations with companies that offer the intermediation services of a digital platform and play “a decisive role in reaching end users or suppliers, also in terms of network effects or data availability”. In essence, the rules automatically consider digital platforms as “strong contractual partners”, unless they prove that there is no economic dependence with third party companies and, in particular, that they do not play “a decisive role in reaching end users or suppliers”.
An indication of such a role of platforms can be found in the definition of “core platform services” provided by the Digital Markets Act (DMA) (EU Regulation 2022/1925) in recital 2, where it lists among the features of core platform services “an ability to connect many business users with many end users through the multisideness of these services, a significant degree of dependence of both business users and end users, lock-in effects”.
Article 33 also provides an illustrative list of practices that constitute an abuse of economic dependence on the part of platforms in order to guide their conduct in commercial relations with third party companies that use their intermediation services, including:
- providing insufficient information or data regarding the scope or quality of the service provided and requesting undue one-sided services that are not justified by the content of the activity performed by the platform, or
- inhibiting or hindering the use of a different supplier for the same service, also through the application of unilateral conditions or additional costs not provided for in the contractual agreements or existing licences.
In view of the complexity and delicacy of the matter, the Presidency of the Council of Ministers will hopefully publish appropriate guidelines in the near future.
A further new element introduced by Article 33 is the devolution of jurisdiction over civil actions in this matter to the sections specialized in business matters.