Court of Cassation: no abuse of a dominant position of RFI in ferrying services in the Strait of Messina

By judgment No. 2230/2017, the Italian Court of Cassation ruled on the appeal brought by the shipping company Amadeus S.p.A. against two judgments of the Court of Appeal of Rome in favour of Rete Ferroviaria Italiana S.p.A.. (RFI) and the Ministry of Infrastructure and Transport, in a dispute over an alleged violation of Italian competition law.

In order to start a ferry service to the port of Messina (Sicily), Amadeus requested use of a dock at the port of Villa San Giovanni (Calabria), used by RFI under an agreement between the company and the local port authority. According to Amadeus, that agreement originated a de facto monopoly in favor of RFI, which used the infrastructure at issue to ship not only trains but also vehicles. Therefore, the applicant petitioned the Court of Appeal of Rome for a declaratory ruling of the invalidity of any act or conduct restricting competition and claimed compensation for the damages suffered as a result of the alleged breach of competition law. It also asserted its right of self-production pursuant to Article 9 of Law 10 October 1990, no. 287 (Rules for the protection of competition and the market) and claimed there was an abuse of a dominant position.

The Court of Appeal firstly rejected the claim to the right of self-production, on the grounds that there was no legal monopoly on the ferrying of vehicles, since (according to Article 9 of Law n. 287/1990) such a right exists only in the presence of a legal monopoly, while in the case at issue Amadeus claimed the existence of a de facto monopoly. Then, the Court of Appeal found that there was no abuse of a dominant position since the presence of another private company (Caronte & Tourist S.p.A.), which had obtained from the port authority a licence to use four docks, preventing use by other market players interested, was not taken into account.

The Court of Cassation upheld the decision of the Court of Appeal, dismissing the appeal filed by Amadeus. The Court of Cassation reiterated that, in order to be able to enforce the right of self-production, in the absence of a legal monopoly, it is for the company to prove the existence of the de facto monopoly and the breach of its right under Article 41 of the Italian Constitution. The Court also upheld the decision that there was no abuse of dominant position, adding that, even changing the definition of the relevant market, considering only the port of Villa San Giovanni, it would not be possible, in any case, to presume an abuse of dominant position.


Davide Scavuzzo