Bills, the antitrust exonerates A2A: “I acted correctly on contracts”

“On the basis of the documents acquired, it appears that the variations” of the contracts “regarded economic offers actually expiring”. The Antitrust exonerates A2A and revokes the precautionary measures towards the multi-utility. The investigation had been initiated by the Competition and Market Authority (AGCM) for alleged “unilateral changes” to the electricity and gas contracts.

The “proposals to renew the conditions” of seven companies had ended up under the Authority’s scrutiny (Enel, Eni, Hera, Edison, Acea and Engie, as well as A2A) deemed in contrast with the art. 3 of the Aid bis decree of last 9 August. Article which suspends (from 10 August to 30 April 2023) «the effectiveness of both the clauses that allow for changes to the supply price, and the related notice communications».

On December 12, the Agcm had thus issued seven precautionary measures – one for each company – suspending the effectiveness of contractual changes which would have caused “an unjustified increase in the price”. A2A immediately defended itself by explaining that it had always complied with all existing contracts. The proposed changes were in fact related only to contracts due to expire naturally.

The lawsuit

In the documents filed with the Agcm on December 21, A2A in fact argues that the “renewals” of expired contracts must be kept distinct from the “unilateral modifications”. That this is the correct interpretation of the Aiuti bis decree would be demonstrated by the “parliamentary work” on the conversion of the decree law and the positions taken by Arera: in short, “the renewals do not constitute a hypothesis of contractual variation”

. The multi-utility he then reports «that he has always operated in compliance with the contractual provisions proposing renewals according to a constant time schedule and in no way influenced by the adoption» of the decree. In essence, “close to the expiry of the contract”, it is natural that customers are sent “a communication with the new economic conditions” to be applied in the following period.

A thesis that the Antitrust now admits to be true, also on the basis of the sentence of the Council of State of 22 December which limited the scope of article 3 to only «ius variandi for contracts that have not expired and not to contractual renewals resulting from deadlines agreed by the parties». «In the light of what has emerged – reads the new Agcm provision of 29 December – the conditions that justified the adoption of the precautionary measure of 12 December must be considered as non-existent. The elements collected lead us to believe that the contested conducts integrate changes in the economic conditions actually expiring”. Hence the resolution that “revokes the provision of 12 December”.

The other companies

The Authority also revoked the provision against Hera. On the other hand, the precautionary measures against Enel, Eni, Edison, Acea and Engie were confirmed (which are added to those to Iren, Dolomiti, E.On and Iberdrola) thus suspending «the effectiveness of all communications of unilateral changes or renewal/update/variation of the economic conditions of the offer of open-ended contracts, without a clear, effective and predetermined or predeterminable deadline”. These companies “will not be able to vary the economic conditions of supplies to consumers, condominiums and micro-enterprises that do not have an effective deadline”