On January 21, 2020, the Council of State confirmed the annulment of a 2017 ICA decision sanctioning a cartel between manufacturers of reinforcing steel bars (rebars) and welded wire mesh.[1] In particular, the ICA fined eight companies (namely, Feralpi Siderurgica S.p.A., Ori Martin Acciaieria e Ferriera di Brescia S.p.A., Industrie Riunite Odolesi I.R.O. S.p.A., Riva Acciaio S.p.A., Ferriere Nord S.p.A. and Fin. Fer S.p.A., Stefana S.p.A., Ferriera Valsabbia S.p.A. and Alfa Acciai S.p.A., together the “Manufacturers”) in an amount in excess of €140 million for allegedly coordinating their commercial strategies between 2010 and 2016, by fixing prices and exchanging sensitive information (among other things through the trade association Nuovo Campsider, “NC”).[2] The Council of State, fully upholding the TAR Lazio’s reasoning at first instance,[3] held that the appeal lodged by the ICA was unfounded on two fronts.
First, from the procedural standpoint, the ICA had unjustifiably carried out a preliminary investigation lasting over 4 years, without there being any real reasons to explain the delay in the opening of a formal investigation. In light of the general principle set out in Article 14 of Law No. 689/1981 (pursuant to which “the details of the infringement must be notified to the persons concerned residing in the Italian territory within a period of ninety days …”), which is also applicable to antitrust proceedings, the Council of State held that the ICA must notify the parties of the opening of an antitrust investigation within the above-mentioned timeframe, which runs from the moment when the ICA has full knowledge of the alleged infringement (possibly following a preliminary investigation phase).
Secondly, in terms of substance, the Council of State held that there were several errors in the ICA’s statement of reasons, in particular since the ICA did not provide sufficient elements to link the exchanges of information within NC on ferrous metal scrap and the price fixing that allegedly occurred within the Brescia Chamber of Commerce (the “Chamber”) regarding the finished products. Nor did it prove the alleged link between the activities carried out within NC and the subsequent activities within the Chamber (which in the ICA’s view were part of the same collusive strategy). In addition, the Council of State held that the high frequency of the periodic monitoring by the Chamber of the prices of finished products was not (as stated by the ICA) in itself a signal that the prices were being fixed, given that, inter alia, (i) the frequency of the Chamber’s meetings was justified by the nature of the goods in question (whose price is extremely unstable), and (ii) the explanation provided by the Manufacturers regarding the simultaneous changes in the prices of the finished products (namely, that – following the price monitoring carried out by the Chamber over a given period of time – the prices subsequently applied by the Manufacturers had a natural tendency to mirror the dynamics observed in the previous period) was plausible.
[1] Council of State, Judgment No. 512/2020.
[2] ICA Decision of July 19, 2017, No. 26686, Case I742 – Tondini per cemento armato.
[3] TAR Lazio, Judgments Nos. 6516, 6518, 6519, 6521, 6522, 6523 and 6525/2018.