The Court of Justice sets out the criteria for defining a dominant position in connection with exclusionary practices on the basis of anticompetitive effects of the conduct of an incumbent operator in the context of the liberalisation of the electricity market

(Source: Court of Justice of the European Union)

This case has arisen in the context of the progressive liberalisation of the electricity market in Italy. Although, since 1 July 2007, all users of the Italian electricity network, including households and small and medium sized enterprises (SMEs), have been able to choose their supplier, a distinction was drawn initially between, on the one hand, customers that were eligible to choose a supplier on the free market and, on the other, customers in the protected market, these customers consisting of private individuals and small businesses that continued to be covered by a regulated regime referred to as the ‘servizio di maggior tutela’ (enhanced protection service), which included special protection of prices in particular. It was only subsequently that customers in the latter category were allowed access to the free market.

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