Diario Oficial de la Unión Europea del 8/2/2023 - Sección Legislación
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Source: Diario Oficial de la Unión Europea - Sección Legislación
8.2.2023
EN
Official Journal of the European Union
L 37/11
28
According to the applicant, the competitive conditions for this set of services are sufficiently homogeneous, creating a single target market on a national scale. In the applicants view, the categories of products and services that constitute the relevant market are to be regarded as interchangeable for users in view of their features, prices and intended purposes. The categories of products and services concern dematerialisation, those are services based on human intensive preparation, scanning and data entry activities, electronic archiving and digital storage concerning services involving the storage of electronic documents that can be filed or stored by law, hardware and software supplies, platform and system integration services, keeping physical archives, concerning services involving the taking charge, transportation and storage of paper documents and files through the management of paper stores of individual companies or groups belonging to the same sector 25.
29
The Commission agrees with the applicants view. The market is competitive, in that the users and consumers can choose between a range of products and services with similar features and the supplier does not encounter obstacles in supplying the products and services in question on this market. Physical archiving is gradually being replaced by digital services, which are, moreover, characterised by even lower investment costs, mainly because there is no need to acquire stores for document archiving.
30
There is a constant growth in the use of digital technologies by Italian undertakings, public authorities and users in general. The progressive digitisation of document services has increased the number of documents exchanged through digital services, including the mailroom management service 26.
31
Considering the structure of the market and the absence of regulatory barriers to entry or obligations to comply with technical standards of any kind, the Commission notes that there may be further entries by newcomers. The market includes undertakings with a share of less than 2 %, which are active on the market and which have been operating on the market for years and they are able to remain in the market and be competitive. The Commission notes, that the presence of a substantial wide number of operators confirms the absence of substantial barriers to entry to the market. These factors, together with the low market share of Poste Italiane in the market confirm that they can bring a significant competitive pressure on Poste Italiane and that the activity is directly exposed to competition.
4. CONCLUSION
32
In view of the factors examined in recitals 5 to 31, the condition of direct exposure to competition laid down in Article 341 of Directive 2014/25/EU should be considered to be met in Italy in respect of the activity related to mail service management services.
33
Since the condition of unrestricted access to the market is deemed to be met, Directive 2014/25/EU should not apply when contracting entities award contracts intended to enable the activity referred to in recital 32 of this Decision to be carried out in Italy, nor when design contests are organised for the pursuit of such an activity in that geographic area.
34
This Decision is without prejudice to the application of the Union rules on competition and of the provisions in other fields of Union law. In particular, the criteria and the methodology used to assess direct exposure to competition under Article 34 of Directive 2014/25/EU are not necessarily identical to those used to perform an assessment under Article 101 or 102 of the Treaty or Council Regulation EC No 139/2004 27 as confirmed by the General Court 28,
25 Request, point 3.1.2.
26 Request, point 3.1.2.
27 Council Regulation EC No 139/2004 of 20 January 2004 on the control of concentrations between undertakings OJ L 24, 29.1.2004, p. 1.
28 Judgment of the General Court of 27 April 2016, sterreichische Post AG v. Commission, T-463/14, ECLI:EU:T:2016:243, paragraph 28.
See also Directive 2014/25/EU, recital 44.
