On November 12, 2019, the ICA issued a decision finding that Coopservice S.Coop.p.A. (“Coopservice”), Allsystem S.p.A. (“Allsystem”), Istituti di Vigilanza Riuniti S.p.A. (“IVRI”) and its parent companies Skibs S.r.l. (“Skibs”) and Gruppo Biks S.p.A. (“Biks”), Italpol Vigilanza S.r.l. (“Italpol”) and its parent company MC Holding S.r.l. (“MC Holding”), Sicuritalia S.p.A. (“Sicuritalia”) and its parent company Lomafin SGH S.p.A. (“Lomafin”) participated in a cartel affecting the outcome of several open tender procedures for the provision of private security services, launched by contracting authorities located in the regions of Lombardia, Emilia Romagna and Lazio between 2013 and 2017.[1]

The ICA fined the parties over €30 million overall for the alleged infringement of Article 101 TFEU.

The tenders and the opening of the investigation

The alleged cartel affected tenders representing (in terms of basic amount) around 23% of the main tenders in which the parties participated between 2013 and 2017 in Lombardia, Emilia Romagna and Lazio, where their activities tended to overlap. In particular, the alleged cartel concerned the tenders launched by: (i) Azienda Regionale Centrale Acquisti S.p.A. (“ARCA”); (ii) Trenord S.r.l. (“Trenord”); (iii) Expo 2015 S.p.A. (“Expo”); (iv) Intercent-ER; and (v) ATAC S.p.A. (“ATAC”). These tenders were among the most important ones in the regions concerned. Their value, compared to the total value of the tenders launched at the regional level, was particularly high in Lombardia and in Emilia Romagna.

On February 21, 2018, the ICA started its investigation into alleged bid-rigging, following several complaints. Among others:

Associazione Nazionale Istituti di Vigilanza Privata e Servizi Fiduciari di Sicurezza (ANIVP) and Associazione Italiana Vigilanza e Servizi Fiduciari (ASSIV) reported to the ICA their suspicions about possible collusive conduct concerning the ARCA tender. This tender, divided into 12 lots and having a total value of approximately €47 million, was almost entirely awarded (11 lots out of 12) to a temporary consortium of undertakings (an “RTI”) involving the main firms active in the market (Sicuritalia, Allsystem, Italpol, and IVRI);

Trenord and the Autorità Nazionale Anticorruzione (ANAC) reported to the ICA possible collusive practices implemented by the same firms and another important player (Coopservice) in connection with the Trenord and Expo tenders.

On May 29, 2018, the ICA extended its investigation to the alleged coordination in additional tenders for the award of security services to public and private entities, and to the “compensation scheme” whereby the parties allegedly put in place systematic reciprocal assignments of security services to regulate their relationships.

The ICA’s findings

The ICA held that the contested practices constituted a restriction by object under Article 101 TFEU, consisting of a single, complex and continuous collusive scheme aimed at sharing the lots among the participants and allowing them to retain their historical market shares.

In this context, the parties allegedly entered into a series of anticompetitive agreements aimed at coordinating their participation in some tenders—particularly important in terms of value and geographical scope—in the areas where the parties were historically active, by using legitimate tools, such as RTIs and subcontracting, in an anticompetitive manner. According to the ICA, in some cases the parties participated in the tender with fictitious RTIs, which concealed a geographical sharing of the lots; in other cases, before the tender, the parties entered into opt-out agreements in which some firms committed not to compete in exchange for the assignment of subcontracting quotas. In addition, the parties bilaterally regulated their relationships through the mutual assignment of security services, both in private and public tenders. Finally, in some cases, the agreement resulted in all the parties refraining from participating in the tenders, pursuing the same common purpose of eliminating competition between them.

The amount of the fines

In calculating the amount of the fines, the ICA considered the value of sales to be: (i) the amount awarded, where the undertaking won the bid; and (ii) the amount of the offer, for the second ARCA tender (that was not awarded) and for Lot No. 3 of the Expo2015 “Evento” tender, which was subsequently ruled out. The ICA also took into account the actual share of the awarded amount allocated to each firm within the RTI, which mirrored the revenues the parties expected to realize as a result of the cartel.

After having determined the basic amount of the fine, the ICA applied a 15% increase taking into account the gravity of the infringement, which constituted a hardcore restriction. However, the ICA reduced by 5% the fines imposed on Coopservice, Italpol, IVRI and Sicuritalia, in view of the fact that they had adopted an antitrust compliance program. The ICA did not reduce the fine imposed on Allsystem, as it had adopted a compliance program only after the statement of objections was sent by the ICA to the parties.

As a result, the ICA imposed fines of €3,514,730 on Coopservice, €5,443,923 on Allsystem, €5,488,998 on IVRI and its parent companies Skibs and Biks, €7,264,520 on Italpol and its parent company MC Holding, and €8,328,592 on Sicuritalia and its parent company Lomafin.

[1]              ICA Decision of November 12, 2019 (published on December 16, 2019), No. 27993, Case I821, Affidamenti vari di servizi di vigilanza privata.