71 The AGCM Provision 8272/2000 In the past, the issue of the refusal to supply spare parts in the lift sector has been addressed by the AGCM (the Italian Antitrust Authority), which in its ruling no. 8272/2000, in assessing the conduct of certain multinational lift manufacturers, sanctioned not only the manufacturer’s refusal to supply, but also the delay in supplying original spare parts in the absence of adequate justification. In this case, according to the Authority, the refusal to supply spare parts constituted an actual case of abuse of a dominant position, an anti-competitive practice that occurs when an enterprise, which according to detailed legal requirements is in a strong position on the market, through its own conduct is able to limit, hinder or exclude competition, to the detriment of consumers and with damaging effects on the market. In the case at hand, the infringement of Article 3 lett. b) Law 287/1990 was recognised, as the conduct was found to hinder the performance of the activities of competing companies in the maintenance and non-integrated market, since they were in a position of dependence for the procurement of original spare parts. Following the ruling, which sanctioned the companies complained of, many manufacturers have complied with the principle established by the AGCM, even if the tendency to put spare parts on the market at very high prices persists. DIAGNOSTIC TOOLS With regard to the tools and devices to access the installation in order to carry out maintenance, repair or to put it back into operation, the regulatory panorama is as follows. The Machinery Directive 2006/42/EC point 1.1.2 letter e) Annex I transposed by Legislative Decree no. 17/2010 also applicable to lifts by virtue of point 1.1 Annex I to the Lift Directive 2014/33/EU transposed by Presidential Decree 162/99 and subsequent amendments, provides verbatim that ‘‘Machinery must be supplied with all the special equipment and accessories essential to enable it to be adjusted, maintained and used safely’. This means that the manufacturer is obliged to provide the tools, devices and software necessary to access the diagnostics and in any case the system in order to operate it safely. This obligation is laid down for the manufacturer vis-à-vis the owner, whereas no similar obligation is laid down for the maintenance technician who ceases activity in favour of another company. In other jurisdictions, the right of the maintenance technician to have access to the installation has been provided for in a specific and detailed manner by national legislation. In particular, in France, there is an obligation for the manufacturer or installer to provide access codes or any other form of unlocking at no cost and with no restriction on the duration of use to the lift owner, who can hand them over to the maintenance technician. There is a similar obligation with regard to technical documentation, instructions, specific equipment and warnings for use necessary for maintenance, which must be sufficiently explicit (Art. R134-8 in force since 1/7/2021, into which Art. R125-1-1 of the Building and Housing Code, which came into force in 2012, has been incorporated). In Spain, after a series of Antitrust rulings, a decree came into force in July 2024 setting out the rules on the management of lifts once they are put into operation. Article 7 of the Technical Regulation approved by Royal Decree No. 355/2024 lists the obligations for maintenance technicians, including, in points 17 and 18, the obligation at the time of termination of the maintenance contract to hand over to the successor company the information and codes necessary to access the programming of the control panel for maintenance and rescue on the installation. The obligation, therefore, lies not only with the manufacturer, but also with the maintainer. It is to be hoped that specific legislation will also be introduced in our system, which will also provide for a series of sanctions for possible violations. At the moment, given the regulatory framework in force in Italy, only the owner of the installation can take civil action against the manufacturer for breach of the regulations implementing the Machinery Directive referred to above, while the maintenance technician prevented from accessing the installation as a result of an unjustified refusal by the manufacturer-maintenance technician to provide information, devices and software, can only act to protect himself from unlawful anti-competitive behaviour, except to claim damages. Similarly to the abovementioned case of refusal to supply original spare parts, the denial of access to such systems could, in fact, constitute an abuse of the manufacturer-maintenance company’s advantageous position if it is aimed at safeguarding and increasing its own downstream position in the market for maintenance services. This is because it would hinder the competition of independent undertakings by leveraging its own position of strength, which is identifiable in the exclusive availability of such necessary systems. In this regard, it should be noted that the issue has been dealt with by the AGCM, albeit in relation to different sectors and characterised by specific regulations. The Authority, in assessing a similar case complained of, considered it important to give relevance to the requirement of the indispensability of the devices or software for access to the machinery in order to allow a proper balancing between the protection of the producer’s intellectual property rights and the protection of competition. This balancing, according to the AGCM, must be carried out by assessing: • whether the tools and devices for accessing the system are the only ones that allow its maintenance; • whether there are no alternative products or services; • whether there are technical, regulatory and economic obstacles that completely prevent competitors in the maintenance market from creating or using alternative solutions. In conclusion, in the event that maintenance companies are faced with unjustified refusals to provide information and access devices, it will be necessary to gather appropriate evidence and assess the case on a case-by-case basis in the light of the principles and considerations set out above. * Lawyers from the Studio Legale Berliri Nucci Veroni
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