The Abuse of Economic Dependence and Digital Platforms
The recent reform of article 9 of Law no. 192/1998, which shall come into force on October 31, 2022, has explicity extended the cases of abuse of economic dependence to digital platforms.
Law no. 118/2022 was published on the Official Boulletin of the Italian Republic on August 12, 2022, in light of some remarks made by the Italian Antitrust Authority (AGCM) regarding the need to adapt the discipline in force to digital markets.
The Law at stake provides for a relevant amendment to article 9 of Law no. 192/1998, which regulates the abuse of economic dependence, meaning the cases when a company can determine an excessive disequilibrium of rights and obligations in the commercial relation with another company, in consideration of the concrete possibilities of the latter to get satisfying alternatives on the market.
Although the law provision mentioned above is contained in Law no. 192/1998, which regulates the subcontracting, it is undisputed, in case-law and doctrine, that it applies to any vertical relations between companies, including for example franchising relations.
The reform of article 9 above introduces important changes in the fight against the abuse of economic dependence with reference to digital platforms.
First of all, the law introduces a “iuris tantum” presumption of economic dependence in case a company uses a digital platform for intermediation services and such platform has a fundamental role in reaching the final clients/users or the suppliers, also under the viewpoint of the network effects or of the availability of the data.
Another change consists in the introduction, in paragraph 2 of the provision at stake, of an exemplification of the behaviours that are considered abusive if put in place by digital platforms.
In particular, the new article 9 includes, among the abusive behaviours, the transmission of information or data, which are not sufficient for the quality of the provided service; the request of unilateral performances which are not due or justified by the kind of activity that is carried out and lastly, the use of practices which forbid or impede the use of another supplier for the same service, also by applying unilateral conditions or additional costs that are not provided by the agreements or licenses in force.
The last innovation of the reform consists in the specific provision of the competence of the Court sections that are specialised in business matters for civil claims regarding the abuse of economic dependence.
The amended provision shall be applicable starting from October 31, 2022. Therefore, it is necessary that companies, especially in the technological sector, consider it both in the phase of structuring their future terms and conditions and in the execution of the current ones, in order to avoid litigations and/or breaches to the prohibition to abuse of the economic dependence, which can be ascertained and punished by the Italian Competition Authority.