On July 31, 2020, the Council of State upheld a judgment[1] in which the TAR Lazio confirmed an ICA decision rejecting a request to review the amount of a cartel fine imposed on Industria Meccanica Varricchio – I.Me.Va. S.p.A. (“I.Me.Va.”) in 2012.[2]
In 2012, the ICA sanctioned seven companies (including I.Me.Va., which was fined in the amount of approximately €4.8 million) for participating in an alleged cartel aimed at sharing the Italian market for road safety barriers and fixing prices.[3] In 2013, following an application for annulment by I.Me.Va., the TAR Lazio annulled the ICA decision.[4] The Court accepted the applicant’s plea of excessive length of the administrative proceedings, since the ICA’s investigation has lasted approximately three years, with three subsequent decisions extending the initial deadline set by the ICA. The TAR Lazio affirmed the principle according to which the ICA is bound to respect investigation deadlines, noting that, otherwise, multiple and unjustified delays would render procedural deadlines ineffective. The TAR Lazio noted that the ICA acted as “if it could complete its investigation without being subject to a definite time limit”, thus causing unjustifiable and unreasonable delays.
However, in 2018 the Council of State overturned the judgment of the TAR Lazio and, ultimately, confirmed the 2012 infringement decision.[5] In particular, relying on Article 6 of Presidential Decree No. 217 of April 30, 1998, the Council of State held that there is no mandatory time limit for the conclusion of proceedings before the ICA, as their duration may be extended if necessary, provided that it is done before the expiry of the initial deadline and by a duly reasoned decision.
Following the Council of State’s ruling, I.Me.Va. submitted a request to the ICA to review the fine or, alternatively, to provide for the possibility to pay the fine in instalments. The ICA rejected the request to review the amount of the fine,[6] but granted the request to pay the fine in 30 monthly instalments.[7]
I.Me.Va applied for the annulment of the ICA decision rejecting its request to review the fine, but its action was dismissed by the TAR Lazio and, ultimately, by the Council of State in July 2020.
First, both courts reaffirmed the nature of the fining decision as an act “with immediate effect”, whose effects are exhausted at the moment of their adoption, resulting in an obligation on the addressee to pay the amount of the fine. Any possible extension of time in the enforcement of the decision by the ICA may depend, inter alia, on the addressee’s failure to comply with the decision, procedural events or possible instalments for the payment granted by the ICA. The Council of State also emphasized that the needs raised by the applicant to support its request for a review of the fine, based on alleged economic difficulties, may be asserted in the context of the applicant’s compliance with its obligation to pay the fine previously imposed. A case-by-case assessment of any potential “further circumstances” must be carried out by the ICA only in the context of the compliance phase, in order to assess whether the payment of the fine has become objectively unenforceable, in light of the evidence submitted by the debtor undertaking.
[1] TAR Lazio, Judgment No. 6089 of May 16, 2019.
[2] Council of State, Judgment No. 4867 of July 31, 2020.
[3] ICA, Decision of September 28, 2012, No. 23931, Case I723 – Intesa nel mercato delle barriere stradali.
[4] TAR Lazio, Judgment No. 8672 of October 7, 2013.
[5] Council of State, Judgment No. 3197 of May 29, 2018.
[6] ICA, Decision of July 27, 2018, No. 57207, Case I723 – Intesa nel mercato delle barriere stradali.
[7] ICA, Decision of August 2, 2018, No. 57678, Case I723 – Intesa nel mercato delle barriere stradali.