The Italian Council of State rules on the issue of dominant firms' duty to supply essential information beyond the requirements of sector regulation (BCS)

On 11 January 2013, Italy’s highest administrative court handed down an important ruling on the issue of the dominant firms’ duty under Article 102 TFEU to grant their competitors access to essential information when sector regulation encourages such a disclosure. Reversing an earlier judgment by the Latium Regional Administrative Court, the Council of State upheld the decision of the Italian Antitrust Authority (“IAA”) in the A415 - Sapec Agro / Bayer-Helmcase, which had imposed a fine of over EUR 5 million on two companies of the Bayer Group, Bayer Cropscience AG and Bayer Cropscience Ltd. This note examines the Council of State's ruling in the light of the relevant EU courts case-law on refusal to license and assesses its impact on the IP/antitrust interface.