The Council of State ordered the ICA to refund a cartel fine imposed on Hapag Lloyd Italy S.r.l. (“Hapag Lloyd”), after the underlying infringement decision was overturned based on appeals brought by other cartelists.[1]

In February 2012, the ICA fined 15 shipping agencies and two industry associations €4 million overall for infringing Article 101 TFEU.[2] Hapag Lloyd, which benefited from a 50% reduction of the fine on the basis of the leniency programme, did not challenge the decision. Following the appeals filed by the other alleged cartelists, in January 2013 the TAR Lazio quashed the ICA’s decision.[3] The judgment was confirmed by the Council of State in July 2014.[4]

In an effort to benefit from the outcome of the fellow cartelists’ appeals, Hapag Lloyd asked the TAR Lazio (i) to extend the effects of the judgment to those that did not challenge the ICA’s decision and, therefore, (ii) to find that the payment of its fine was undue, and (iii) to order the ICA to repay the fine. The TAR Lazio dismissed Hapag Lloyd’s request to extend the effects of the judgment on the ground that Hapag Lloyd did not challenge the ICA’s decision, despite having had the opportunity to do so, and reopened the proceedings for the analysis of Hapag Lloyd’s further requests.[5] The decision of the TAR Lazio was subsequently confirmed by the Council of State.[6]

Hapag Lloyd then asked the TAR Lazio to adjudicate on its remaining requests by (i) finding that the payment of its fine was undue, and (ii) ordering the ICA to repay it. The TAR Lazio rejected the request, on the ground that the payment was made on the basis of a decision in force and, thus, could not be deemed undue.[7]

Hapag Lloyd challenged the TAR Lazio’s judgment before the Council of State, which upheld its appeal. According to the Council of State, under EU Regulation No. 1/2003 a fine can only be imposed if there is an infringement of competition rules. In the case at issue, the ICA decision found an anticompetitive agreement involving several parties, but the administrative courts held that the alleged cartel did not exist. The courts quashed the ICA decision because there was no infringement of competition rules, and not because some of the parties did not participate in the cartel or because of other issues linked to the parties’ individual positions. Therefore, it was not possible to find that the anticompetitive agreement existed in respect of some participants but not others.

As a result, even if the effects of the judgment could not be extended to Hapag Lloyd because it did not challenge the ICA decision, the Council of State held that the payment of the fine can still be considered undue under EU law, and must therefore be returned, in the absence of anticompetitive conduct. In addition, the Council of State considered that the payment of a fine in the absence of an infringement would be incompatible with the proportionality principle. Finally, the Court noted that, pursuant to Article 2033 of the Italian Civil Code, undue payments must be returned. Accordingly, the Council of State ordered the ICA to return the fine.

[1]              Council of State, Judgment No. 8568/2019.

[2]              ICA Decision of February 22, 2012, No. 23338, Case I733, Servizi di agenzia marittima.

[3]              TAR Lazio, Judgment No. 362/2013.

[4]              Council of State, Judgment No. 3406/2014.

[5]              TAR Lazio, Judgment No. 6241/2015.

[6]              Council of State, Judgment No. 362/2016.

[7]              TAR Lazio, Judgment No. 4010/2017.