TIM Secures Win in Italian Supreme Court

Cleary Gottlieb represented Telecom Italia S.p.A. (TIM) in its win before the Italian Supreme Court in an action for damages for alleged retention practices.

With a judgment published on February 8, 2025, the Italian Supreme Court upheld the appeal brought by TIM against the decision of Court of Appeal of Rome ordering it to pay compensation for alleged damages suffered by PosteMobile S.p.A. (now PostePay S.p.A.) as a result of alleged retention practices carried out by TIM.

PosteMobile claimed that TIM had used data reported in the number portability requests to contact customers who intended to change operator and retain them with improved offers (so-called retention). The Court of Appeal held that: although the Court of Rome had found that the amount of damages had not been proven, it had ascertained acts of retention by TIM against PosteMobile, with a judgement that had become final as it had not been challenged by TIM in a counter-appeal. In upholding TIM’s defense, the Supreme Court ruled out that the first-instance judgment had established TIM’s liability for the alleged retention practices, let alone with a final “decision.” In particular, the Supreme Court stated that, contrary to the Court of Appeal’s findings, the Court of Rome had deemed the alleged acts of retention against PosteMobile’s customers to be unproven, even on a presumptive basis. Therefore, the Court of Appeal had erroneously held that TIM’s liability was covered by res judicata.

The judgment is particularly relevant because it clarifies that, even if the plaintiff relies, in support of its claims, on decisions of independent administrative authorities concerning allegedly unlawful conduct on the market, it is necessary to allege and prove that the contested conduct specifically affected the position of the allegedly injured party.