On August 5, 2019, the Council of State partially annulled several judgments delivered by the TAR Lazio in 2017,[1] which had upheld the ICA’s decision to fine—among others—Gruppo Illiria S.p.A. (“Illiria”) and Supermatic S.p.A. (“Supermatic”) for having participated in an alleged cartel in the market for vending machines.
With respect to Illiria, the Council of State held that the ICA had not sufficiently substantiated its claims regarding Illiria’s leadership role in the cartel and, accordingly, was wrong in applying the ring leader aggravating factor. The Council of State recalled that this aggravating factor is applicable only if, alternatively, the undertaking was: “(i) a driving force and had a particular responsibility for [the cartel’s] functioning; (ii) responsible for developing and suggesting the conduct, giving a fundamental impetus to the implementation of the agreement; (iii) committed to ensuring the stability and success of the unlawful agreements; or (iv) responsible for organizing meetings.”[2]
With respect to Supermatic, the Council of State held that the ICA should have reduced the fine by 35%, because it should have considered as mitigating factors that Supermatic: (i) adopted an antitrust compliance program, and (ii) had a marginal role in the cartel. In addition, the ICA was wrong in including shareholders’ assets in the assessment of the company’s taxpaying capacity.[3]
The Council of State reduced the fine by 15% with respect to other cartelists as well, because it found that the ICA had not properly assessed their role in the cartel.[4]
[1] TAR Lazio, Judgment Nos. 9049/17 and 9062/17; and ICA Decision of June 8, 2016, No. 26064, Case I1783, Accordo tra operatori del settore vending.
[2] Council of State, Judgment No. 5563/19.
[3] Council of State, Judgment No. 5561/19.
[4] Council of State, Judgment Nos. 5564/19, 5562/19, 5560/19, 5559/19 and 5558/19.