GPD, represented by Prof. Avv. Andrea Gemma and Avv. Elisabetta Mattozzi, and Prof. Avv. Vincenzo Meli, hereby acknowledge the successful decision of the Rome Court, Specialized Section for Business Matters, which, by judgment of March 13, 2025, entirely rejected the claim for damages exceeding 116 million euros, brought by a company engaged in the supply of electricity and gas for domestic use, which alleged improper and anticompetitive conduct allegedly carried out by another company operating in the same sector.
The dispute concerned the alleged violation of art. 2598 of the Italian Civil Code and arts. 18 et seq. of Legislative Decree 206/2005 regarding customer acquisition activities (so-called winback) deemed improper and anticompetitive. The Court, following an in-depth investigation, after clarifying that “… precisely by virtue of the principle established in the first paragraph of art. 24 of the Italian Constitution, it was necessary in this proceeding, for the purpose of assessing the merits of the claim advanced by the plaintiff for protection of its right allegedly harmed by the defendant’s conduct, to conduct an independent evaluation by the Court of the allegations respectively made by the parties, as well as of the evidence provided in this proceeding, while taking into account the findings and evaluations already made by the Competition and Market Authority in the exercise of its powers” excluded the existence of unlawful practices due to lack of evidence regarding customer diversion, as well as alleged undue pressure, deception or other denigrating conduct directed against customers.
According to the Court, the so-called winback, if implemented in compliance with the rules of commercial fairness, constitutes a lawful act within the normal dynamics of the energy market.
The decision, preceded by a highly articulated investigation lasting years and culminating in a phonetic expert assessment of certain telephone recordings with customers, clarifies that the boundaries between competition and prohibited conduct lie in the realm of facts and methods, reiterating that commercial strategies must be evaluated on the basis of objective, clear and transparent criteria, in order to avoid automatisms that could compromise ordinary competitive antagonism.
Prof. Avv. Andrea Gemma concludes by observing that: “… We welcome with satisfaction the judgment of the Rome Court. A significant precedent regarding so-called winback practices. It clearly emerges the principle that the impropriety of conduct must not be evaluated in relation to its outcome, but must be assessed concretely, case by case, avoiding any interpretative automatism that could distort the dynamics of highly competitive markets“.
