On 23 October 2008, the Italian Antitrust Authority (the IAA) began an investigation under Article 14 of Law number 287/1990, into FVH, Liquigas, Quiris, Butangas and I.PE.M (together, the parties). The IAA suspected that there was in operation an anti-competitive agreement violating Article 101(1) TFEU, by means of joint control over I.PE.M, the owner of a coastal depot for Liquid Petroleum Gas (LPG) at Brindisi.
At an early stage of the investigative procedure, the IAA had highlighted that the possible violation of Article 101 TFEU had, as its object, (i) a limitation on third party access to the Brindisi LPG depot (ii) a restriction and a coordination of activity of the wholesalers of LPG and (iii) an exchange of commercially-sensitive information on the quantities of LPG being moved to/from the depot by the parties. The relevance of the competition restriction on the markets in question would also relate, according to the IAA, to the significant size of the depot (21% of the primary logistical capacity of central/southern Italy) and the importance of the businesses forming part of I.PE.M, some of whom are amongst the main Italian operators in the sale of LPG.
I.PE.M, before the modification of its constitution, was an independent operator which used its own logistical structures for the wholesale of LPG. With the transformation of I.PE.M into a cooperative joint venture following the acquisition of its assets by FVH, Liquigas, Quiris and Butangas, it became vertically-integrated upstream, into the area of primary logistics, the present members of which were, previously, its clients.
The parties, under Article 14 of Law 297/90, submitted commitments regarding the non-competition pact and the composition and governance of the Technical Committee so as to ensure competition in the market.
- The anti-competitive elements present in the constitutional documents of I.PE.M were removed, and the parties to I.PE.M committed to abstain from putting into effect at the I.PE.M depot any trading in LPG in relation to operators of central-southern Italy and to use the same product, imported and transported through I.PE.M exclusively to satisfy the requirements of its own commercial structures. With the annulment of this legal constraint on the use of LPG transported across the common site, each company can freely determine the destination of the product.
- In relation to the remarks raised by the IAA concerning the Technical Committee of I.PE.M, the parties committed themselves not to designate their own employees, with responsibilities in the central-southern Italian market, as members of the Technical Committee, other than to prevent particular restraints on those employees. In this way, the danger that each party could acquire sensitive information, whether through the activities of other companies or through those of other users of the depot, would be averted.
The procedure against FVH, Liquigas, Quiris, Butangas and I.PE.M was closed on 20 May 2009, under decision number 19886, without reaching a finding of infringement, since the IAA rendered binding the commitments proposed by the parties in so far as they were suitable to dispose of the anti-competitive elements of the investigation.