1) Court of Justice of the European Union: the Bolkestein Directive does not apply to small hydroelectric diversion schemes, as these are installations whose sole or principal activity is the production of electricity, which constitutes a good and not the provision of a service

By judgment of 3 September 2026 in Case C-653/24, the Court of Justice of the European Union (“CJEU”) affirmed the principle according to which Directive (EU) 2006/123/EC (the “Bolkestein Directive”) cannot apply to installations that produce exclusively electricity, with specific reference to small hydroelectric concessions.

The grounds underlying the CJEU’s decision proceed from the principle that — under the settled case law of the CJEU itself — electricity constitutes a good, in the sense of a commodity or a product. Accordingly, the CJEU continues, (i) the activity of producing a product cannot be considered, at least as such, a service, and (ii) the fact that the activity of producing electricity is accompanied by the provision of services does not mean that such services are automatically to be regarded as ancillary to the principal activity (i.e. the production of electricity).

Accordingly, according to the Judges, if it is considered that the Bolkestein Directive applies only to service concessions or to cases in which the activity carried out through the use of public property may nonetheless be classified as a service, the production of electricity by installations whose sole activity, or at least principal activity, is that same activity — such as small hydroelectric diversion installations — is not subject to the rules of the Bolkestein Directive.

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2) European Commission: Guidelines on abuses of dominant position aimed at excluding competition adopted

On 3 September 2026, the European Commission has adopted the new Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings, which replace the Commission’s 2008 guidance (as amended in 2023) on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty (now Article 102 TFEU) to that same conduct (the “Guidelines”).

The Guidelines provide a modern framework, grounded in EU case law, for tackling exclusionary conduct — including predatory pricing, margin squeeze, exclusive dealing arrangements and refusal to supply — which prevents competitors from competing on equal terms, thereby undermining innovation and consumer choice. Among the principal innovations, the document introduces a two-step test: it is necessary to verify (i) that the conduct departs from competition on the merits, and (ii) that it is capable of producing exclusionary effects.

The Guidelines also provide guidance on the concept of dominant position — including in relation to ecosystems and aftermarkets — and characterize new forms of abusive conduct such as self-preferencing and data-driven abuse, with specific regard to digital platforms. Undertakings will be able to justify their conduct by demonstrating that it is objectively necessary or that it produces efficiency gains for the benefit of consumers, including efficiencies linked to environmental sustainability.

3) Council of State: the participation of Municipalities in companies engaged in the sale of electricity and gas is lawful

By judgment No. 6089/2026, published on 27 July 2026, the Council of State ruled on the lawfulness of the holding of shareholdings by Municipalities in companies carrying on the activity of selling electricity and gas.

The decision proceeds from the premise that the activity of selling natural gas and electricity, although carried out in a market that has by now become liberalized, may nonetheless be classified as a service of general economic interest (the so-called SGEI). According to the Judges, the fact that the price of gas and electricity is now determined largely by the market is not in any way decisive, since, in any event, the obligations that characterize the service as public remain firmly in place — namely, the obligations aimed at ensuring the universality, economic accessibility, safety and transparency of the service itself.

Accordingly, on the basis of that premise and of further considerations relating to public shareholdings, the Council of State recognized “the suitability of the activity of selling gas and electricity to be classified as a service of general economic interest and, therefore, to be carried out by a company with public participation”, provided that the primary purpose pursued is “the satisfaction of the needs of local communities and, therefore, not merely the pursuit of profit”.

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