On July 11, 2019, the Council of State set aside a judgment issued by the TAR Lazio in 2016,[1] which had annulled an ICA decision fining Firema S.p.A. (“Firema”) approximately €230,000 for its participation, together with 12 other undertakings, in a single and continuous infringement by object consisting of a secret concerted practice in the context of 24 tender procedures for the purchase of goods (mostly coils for electric traction motors) and electromechanical services (mostly repair and maintenance of those engines) for the railway sector called by awarding authority Trenitalia S.p.a.[2]

The Council of State quashed the TAR Lazio judgment on two grounds. First, it held that the fact that Firema’s parent company had not been formally involved in the ICA’s investigation did not result in its final decision being unlawful, since the parental liability presumption cannot be interpreted as obliging a competition authority – where a company’s personal liability for an antitrust infringement is fully established – to subjectively extend an investigation to its parent company. According to the Council of State (whose position does not seem entirely well- founded), pursuant to an established EU case law,[3] the involvement in antitrust proceedings of both a parent company and its subsidiary (which falls within a competition authority’s discretion) determines a joint liability for the misconduct at issue, which in turn gives rise to joint and identical accountability for the payment of the fine, regardless of whether the parent company was involved or not in the investigation. Second, the Council of State held that, although for a portion of the overall duration of the infringement Firema was managed by a special administrator (due to the opening of an insolvency procedure), this did not automatically result in the impossibility to attribute the subsequent collusive conduct to Firema, absent a true change in the company’s management. Moreover, the fact that such conduct had been carried out by employees “belonging to the previous management” was not relevant, in light of the case law by which a company may be liable for antitrust misconduct carried out by its employees even where they lack power of representation.[4]

[1]              Council of State, judgment No. 4874/2019.

[2]              ICA decision of May 27, 2015, No. 25488, Case I759, Forniture Trenitalia. The appeals lodged by some of the other companies fined by the ICA were all rejected by the TAR Lazio: see TAR Lazio, judgments No. 2668, 2670, 2671, 2672, 2673, 2674, 3075, and 3078/2016 (see also Council of State, judgment No. 4211/2018).

[3]              Pirelli & C. v Commission, T-455/14, ECLI:EU:T:2018:450, § 72 ; Villeroy & Boch v Commission, C-625/13 P, ECLI:EU:C:2017:52, §148.

[4]              Council of State, judgment No. 5864/2009.