The decision of the ICA
On December 21, 2016, the ICA concluded its investigation into certain anticompetitive practices allegedly implemented by major firms active in the provision of home oxygen therapy (“HO”) and home mechanical ventilation (“HMV”) services. According to the ICA, Linde Medicale S.r.l. (“Linde”), Medicair Italia S.r.l. (“Medicair”), Medigas Italia S.r.l. (“Medigas”), Sapio Life S.r.l. (“Sapio”), Vitalaire Italia S.p.A. (“Vitalaire”), Vivisol S.r.l. (“Vivisol”), Eubios S.r.l. (“Eubios”), Oxy Live S.r.l. (“Oxy”), Ossigas S.r.l. (“Ossigas”), Magaldi Life S.r.l. (“Magaldi”) and Ter.gas. S.r.l. (“Ter.gas.”) participated in three separate agreements affecting the outcome of open tender procedures for the provision of HMV in part of the Milan province, HMV and HO in the Marche region and HO in the Campania region, launched by ASL Milano 1, ASUR Marche and SORESA between 2012 and 2014.
In particular, the ICA found that:
Linde, Medicair, Medigas, Sapio, Vitalaire and Vivisol entered into an agreement affecting the outcome of four calls for tender issued between 2012 and 2014 by (or on behalf of) ASL Milano 1 for the provision of HMV services. The agreement aimed at maintaining the HMV service prices artificially high and at sharing the market;
Linde, Medicair, Sapio, Vitalaire and Vivisol coordinated their strategies so as to affect the outcome of the call for tender launched in 2010 by ASUR Marche for the provision of HMV and HO services to patients resident in the region;
Linde, Medicair, Eubios, Oxy, Ossigas, Magaldi, Ter.gas., Vitalaire and Vivisol put in place a coordination strategy aimed at: (i) keeping the price of HO services in Campania artificially high; (ii) hindering the launch of a public tender for the award of the service; and (iii) affecting the outcome of the tender launched by SORESA in 2014.
The ICA fined the parties approximately €47 million overall for infringing Article 101 TFEU.
The parties challenged the ICA decision before the TAR Lazio, which upheld the appeals. Following appeals by the ICA, the Council of State quashed the TAR Lazio’s judgments.
The Council of State upheld the appeals filed by the ICA against the TAR Lazio’s judgments in a number of decisions issued on December 19, 2019 and January 3, 2020.
(i) The tenders launched by ASL Milano 1
The Council of State quashed the judgments of the TAR Lazio that had upheld the appeals lodged by Linde, Medicair, Medigas and Vivisol in connection with the tenders launched by ASL Milano 1. According to the Council of State, the parties coordinated their strategy in order to boycott the first 3 tenders launched by ASL Milano 1 and to get the lots involved in the fourth tender at a much higher price than the one originally intended by the contracting authority. In fact, while the first three tenders’ award conditions would have not allowed for the price increases pursued by the firms concerned, as the calls for tenders provided for an auction base in line with the prices in force, as a result of the boycott of these tenders the fourth tender provided for significant increases in the auction base.
The Council of State held that, contrary to the TAR Lazio’s finding, the parties did not act in a “spontaneous and autonomous” way. In the court’s view, the presence of an alternative explanation for the parallel behaviour must be examined in the relevant factual context, in light of the available evidence. The analysis must focus on plausible reasons that may justify the parties’ decision not to participate in a tender. The appellants claimed that their decision was based on the non-profitability of the tenders. According to the Council of State, the tenders had to be considered profitable, regardless of any comparison between them, and the economic studies put forward by the parties to justify their behavior on the basis of the non-profitability of the tenders did not rule out the existence of a boycott strategy, as they were based on discretionary assumptions that could not be taken for granted. The ICA’s view was considered more credible, as the alleged coordination was reasonable and consistent with the available evidence, whereas the alternative explanations put forward by the parties were not supported by the file of the proceedings. The Council of State also pointed out that possible discrepancies in the circumstantial evidence did not affect the ICA’s findings. This may happen only in case of serious inconsistencies that threaten the overall reliability of the evidentiary framework.
(ii) The tender launched by ASUR Marche
The Council of State also quashed the judgments of the TAR Lazio that had upheld the appeals lodged by Linde, Medicair and Vivisol in connection with the tender launched by ASUR Marche. According to the Council of State, even though the parties had pre-qualified for the tender—having expressed their interest in taking part in it within the deadline set in the call for tender—and actively contributed to the definition of the tender documents, they agreed not to participate in the tender launched by ASUR Marche, in order to ensure the extension of previously signed supply contracts, which were more favorable from an economic standpoint. In the Council of State’s view, the TAR Lazio erred in holding that the parties had not entered into an anticompetitive agreement because, among other things, it did not take into account the provision contained in the call for tender according to which even one single offer could lead to the award of the service. According to the Council of State, the presence of such a clause in the call for tender bore extremely high risks for the participants, as it could lead to a five-years exclusivity even in case one single offer was presented. In such a scenario, the behaviour of the parties could only be explained by the fact that the they anticompetitively coordinated their strategies to boycott the tender and make sure that the above- mentioned provision would remain unused.
(iii) The tender launched by SORESA
Finally, the Council of State quashed the judgments of the TAR Lazio that had upheld the appeals lodged by Linde, Medicair, Oxy, Ter. Gas, Eubios and Vivisol in connection with the tender launched by SORESA. According to the Council of State, the companies implemented a coordinated strategy aimed at: (i) keeping the price of HO services in Campania artificially high; (ii) hindering the launch of a public tender for the award of the service (by boycotting the proposal for a framework agreement put forward by SORESA); (iii) and preventing effective competition in the tender launched by SORESA.
In particular, according to the Council of State, the TAR Lazio erroneously held that the agreement entered into by the parties to refuse the price proposed by the contracting authority did not constitute anticompetitive conduct and could not alter price dynamics in the market, in light of the alleged crucial role of Federfarma in setting the prices. In the Council of State’s view, under competition law, the firms concerned were forbidden from coordinating their commercial strategies, regardless of the role played by Federfarma.
Regarding the second conduct, the Council of State disagreed with the TAR’s finding that the ICA had not produced sufficient documentary evidence. In the court’s view, even though there was no smoking gun, the evidence collected by the ICA satisfied the legal standard required to demonstrate a coordination of the parties’ commercial policies.
Finally, regarding the third conduct, the Council of State ordered the ICA to adjust the fine imposed on Linde and Vivisol, taking into account: (i) as value of sales, the actual shares of the awarded amount allocated to each firm within the RTI; and (ii) the original 20% increase on account of gravity of the infringement (that the TAR Lazio had reduced to 15% because it had annulled the parts of the ICA’s decision concerning the other two conducts).
 ICA Decision of December 21, 2016, No. 26316, Case I792, Gare ossigenoterapia e ventiloterapia.
 TAR Lazio, Judgments Nos. 4467, 4468, 4471, 4473, 4476, 4481, 4482, 4483, 4484, 4485, 4486, 4487, 4489/2018.
 Council of State, Judgments Nos. 8583, 8584, 8585, 8586, 8587, 8588, 8589, 8590, 8591/2019 and Nos. 50, 51, 52, 53/2020.