In July 2021, a commercial partnership agreement was signed between Acea Energia SpA and WindTre SpA regarding the definition, promotion and advertisement of offers related to the supply of electricity and gas by Acea Energia characterised by the brand “WindTre powered by Acea Energia”. The commercial offers dedicated to the initiative will be promoted from July 2021 inside the points of sale belonging to the WindTre sales network in the Veneto and Puglia regions, before expanding during 2022 across Italy.
This decision is in line with the company’s strategic plan, which aims to expand the customer portfolio beyond its territory of reference while benefiting from the widespread network of WIND points of sale across Italy.
With regard to the proceedings started by the Antitrust Authority and ARERA, the main updates are described below:
Proceeding PS9815 of the AGCM for unsolicited activations: on 15 May 2019 the EU Court of Justice ruled on the preliminary ruling of the Lazio Regional Administrative Court, stating that: (i) there is no conflict between the directives on unfair commercial practices and on remote contracts (29/2005 and 83/2011) and the sectoral directives (72/2009 and 73/2009); (ii) in the energy sector it is also possible to apply the general discipline for the protection of consumers (with consequent competence of the AGCM, pursuant to art. 27, paragraph 1-bis, of the Consumer Code). In accordance with Directives 2009/72 and 2009/73, it follows that ARERA is not competent to sanction such conduct. On 28 February 2020 Acea Energia received a communication that the Lazio Regional Administrative Court set a public hearing for 20 July 2020 for the annulment of the fine.
On 24 September 2020 the sentence was received with which the Lazio Regional Administrative Court rejected the appeal submitted in 2016 by Acea Energia with regard to the AGCM order on the HHV regarding unsolicited activations of electricity and gas supplies.
On 23 December 2020, an appeal for the sentence of the Lazio Regional Administrative Court to be overturned was submitted.
Proceeding A513 of the AGCM for abuse of dominant position: on 17 October 2019 the Lazio Regional Administrative Court issued sentence no. 03306/19, which upheld the appeal brought by Acea SpA and its subsidiaries and, as a result, annulled sanction measure no. 27496 of 20 December 2018 that found that Acea SpA and its subsidiaries had abused their dominant position in violation of art.102 of the TFEU, which had led to the imposition of an administrative fine of € 16,199,879.09.
On 17 January 2020 the notice of appeal was served by the Authority, represented and defended by the Attorney General’s Office, asking the Council of State to annul and/or overturn sentence no. 11960/2019 handed down by the Lazio Regional Administrative Court, and as a result reject the companies’ request in 1st instance.
On 14 February 2020 the cross appeal was filed with the restatement of the grounds of appeal that were taken up by the judgement of first instance. More specifically, in the first part the appeal focuses on the sole ground of appeal rejected by the Lazio Regional Administrative Court concerning the lack of investigation regarding the definition of the relevant market; in the second part, it proposes – thus covering them in full – the fourth to seventh grounds of the appeal that the Regional Administrative Court declared “absorbed”, having considered sufficient the acceptance of the second and third grounds of the appeal for the annulment of the fine.
On 30 April 2020 Acea received a communication in which AIGET, on 23 April 2020, filed a formal instrument of incorporation in support of AGCM’s appeal.
Proceeding PS10958 of the Antitrust Authority (AGCM): on 21 April 2020, the AGCM sent Acea Energia a request for information regarding “each commercial offer related to electricity and natural gas services, proposed to domestic users and micro-enterprises, starting from H2 2019 until Q1 2020”, in particular: i) copy of the technical and financial conditions — TFC — and the general conditions of supply — GCS — related to the aforementioned commercial offers, ii) number of contracts signed by domestic users and micro-enterprises for each commercial offer proposed in the period considered; iii) copy of promotional messages relating to the same commercial offers disseminated through the different communication channels (web, radio, TV, advertising brochures); iv) copy of the scripts used by sales agents in the same period (H2 2019-Q1 2020) to propose the aforementioned commercial offers to customers, both via telesales and door to door.
On 23 April 2020, following the request, the Company sent the AGCM a communication in which, in view of art. 103 of Italian Legislative Decree no. 18 of 2020 and the Bulletin on the interpretation of art. 103 of Italian Decree-Law no. 18 of 17 March 2020, as amended by art. 37 of Italian Decree-Law no. 23 of 8 April 2020, approved by the Board of Authorities at its meetings on 1 April and 10 April, it requested confirmation that the deadline for responding to the request for information was suspended and became effective only from 16 May 2020.
Following telephone conversations — in the absence of a formal response from the AGCM to the Company’s aforementioned request — the Authority agreed to a postponed deadline for submitting the required documentation.
On 21 May 2020, Acea Energia therefore collected all the required documentation and submitted it to the AGCM, together with a response illustrating the criteria used to collect the documentation.
Fact-finding investigation concerning the financial items relating to electricity destined for States within Italy: pursuant to resolution 58/2019/E/eel, on 20 March 2019 the Authority initiated a fact-finding investigation in relation to Acea Energia with the aim of acquiring information and useful data concerning the management of the financial items relating to electricity destined for the dispatching point of export.
In accordance with this Resolution and pending the conclusion of the aforementioned investigation, the Authority has specified to the Italian Energy and Environmental Services Fund that it should proceed on a transitional basis and subject to adjustment with the equalisation of the costs incurred by Acea Energia for 2017 for the purchase and dispatching of electricity intended for standard-offer- market customers.
With Resolution 180/2019/C/eel, the Authority decided to challenge the extraordinary appeal brought by the Azienda Autonoma di Stato per i Servizi Pubblici della Repubblica di San Marino for the annulment of Resolution 670/2018/R/eel (which updated the transmission tariffs for the year 2019) and Resolution 58/2019/R/eel.
Pending the conclusion of the investigation, the Authority asked the Cassa per i servizi energetici e ambiente — on a temporary basis and subject to adjustment — to suspend any disbursements relating to the equalisation of the costs incurred by Acea Energia for 2018 for the purchase and dispatching of electricity intended for standard- offer-market customers.
With Resolution no. 491/2019/E/eel the Authority closed the preliminary investigation by instructing Acea Energia and Areti on the actions to be taken by the end of 2019. Acea Energia informed the Authority that it had complied with the requirements. Resolution 491/2019/E/eel, moreover, gave a mandate (i) to Terna, the relevant distribution companies and CSEA to recalculate the charges for withdrawals of electricity destined for the dispatching point of export by applying the criteria highlighted in the preliminary findings attached to the same resolution (ii) to the Director of the Sanctions and Commitments Department of the Authority for the documents resulting from the evidence found. As a result of this, with Determination 5/2020/eel, the Authority initiated two sanction proceedings against Acea Energia and Areti. On 12 June 2020, Acea Energia sent ARERA its proposal of commitments, including waiver of the amount receivable accrued in relation to the system, payment of compensation to ARERA and the obligation to send two-monthly reporting for a period of ten years. With Resolution 262/2021, the authority partially amended the methods for carrying out the recalculation activities indicated in Resolution 491/2019 and CSEA then sent the definitive recalculations to Acea Energia on 12 July 2021. The items must be settled at the end of the penalty proceedings initiated with Determination 5/2020/
eel. Acea Energia is currently discussing the commitments with ARERA.
With Resolution no. 576/2021, ARERA reformed the regulation concerning the financial items relating to electricity destined for the dispatching point of export, with the aim of bringing it into line with the principles of national regulation. In particular, the Authority intervened on transmission and transport fees, on dispatching and on the regulation of imbalances.
Proceeding PS11216 of the Antitrust Authority (AGCM): on 29 April 2021 the Antitrust Authority sent Acea Energia SpA a request for information regarding the measures used by the company to prevent the charge of amounts potentially subject to biennial limitation in case of use by customers, direct debit or other automatic bill payment methods.
On 20 May 2021, Acea Energia responded to the Authority’s request, describing how objections of limitation are managed. In particular, the objection of limitation, on bills paid through direct debit or otherwise, can be lodged through various channels, including, for example:
- branch;
- complaint;
- e-mail for Free Market: prescrizioneML@aceaenergia.it;
- e-mail for Protected Market: prescrizioneSMT@aceanergia.it;
- post: PO box 5114_00154 Roma Ostiense.
Acea Energia has introduced a telephone system which allows direct debit customers to be informed of the issue of bills containing amounts subject to limitation, in order to assist them in exercising their right to object to the limitation.
The company also considered it appropriate to make its customers aware of the use of self-read meter readings, in order to reduce the charge of amounts potentially subject to limitation as far as possible.
In this context, the Company is carrying out development of its information systems in order to implement a function that makes it possible to automatically block the direct debit with exclusive reference to the quota of consumption subject to limitation for bills containing amounts with regard to which the biennial limitation has accrued. Pending the definition of the aforesaid process, with reference to direct debit customers, the Company has decided to temporarily activate the mechanism — already implemented with reference to the five-year limitation — intended to automatically render the amounts subject to biennial limitation non-collectable. On 2 July 2021 the company received a communication with which the AGCM stated that at the meeting on 1 July 2021, on the basis of the information provided by the company itself on 21 May 2021, it was resolved that there was insufficient information for an in-depth investigation, and therefore it was decided to dismiss the case.
Proceeding PS12106 of the Antitrust Authority (AGCM): on 18 October 2021, the Antitrust Authority (hereinafter also “AGCM”) sent Acea Energia an invitation to remove the profiles of possible unfairness of the commercial conduct, pursuant to art. 4, paragraph 5, of the “Regulation on preliminary investigations concerning misleading and comparative advertising, unfair trade practices, violation of consumer rights in contracts, violation of the prohibition of discrimination and unfair terms” adopted by the Authority with resolution of 1 April 2015.
In particular, the invitation concerned, on the one hand, the failure to refer to the existence and extent of the “marketing charges”, indicated in the technical and economic conditions present on the site, within the advertising material of the offers conveyed by the Company via its own website and, on the other hand, the circumstance that the technical and economic conditions and the general conditions of supply did not specify the monetary value of the security deposit provided for by art. 6, paragraph 9 of the GCS through a reference to ARERA resolutions and not in its monetary value.
On 19 November 2021 the Company responded to this request, accepting the Authority’s invitation and communicating its willingness to update all the offers made on its website, clearly indicating, for each of them, the existence and amount of any additional components applied at the Company’s discretion.
In addition, the Company informed the AGCM that for all offers other than PLACET and gas protection, it removed from the general conditions of supply any reference to the “right to ask the customer to pay a deposit as a guarantee for each supply according to the criteria laid down by ARERA” and inserted the wording “None” in the paragraph of the summary sheet entitled “Guarantees requested from the customer”.
Subsequently, following brief discussions with the AGCM, the Company sent the Authority an addendum to the reply previously sent, containing a specification of the methods for representing offers made through its website. In particular:
- the Company informed the Authority that it will also indicate marketing charges, with the same graphic evidence with respect to the energy/gas component, in the card relating to the offer present on the site. Furthermore, in order to further strengthen the information set made available to consumers, the Company represented that, with regard to the item “Wholesale price” present on the card of each offer, it will insert — by the end of January 2022 — a specification in which, next to the aforementioned item, information is also reported on the average wholesale price expressed in €/kWh for electricity or €/Smc for gas, referring to a predetermined and explicitly indicated time period;
- the Company also announced that it has made further changes to its website. In detail, with a view to further strengthening protection for its users, a number of clarifications were made regarding the “Loyalty bonus of € 80”, by clarifying that this bonus will be paid in the bill after the 12th month of supply, and the wording “100% discount on the monthly contribution for one year”, by changing the reference to the aforementioned discount, clarifying that the Company will be responsible, for the first year of supply, for payment of the monthly contribution indicated in the economic conditions.
