On July 27, 2020, the TAR Lazio annulled an ICA decision of September 2019, which fined Com Metodi S.p.A. (“Com Metodi”), Sintesi S.p.A. (“Sintesi”), and Igeam S.r.l., Igeamed S.r.l. and Igeam Academy S.r.l. (jointly, “Igeam”) (together, the “Companies”) for participating in an alleged cartel which affected the outcome of the open tender procedure for the provision of integrated health and safety management services in the workplaces at Italian Public Administrations, launched by Consip S.p.A. (“Consip”) in December 2015 (the “SIC 4 Tender”).[1]
Background
In March 2018, after Consip reported to the ICA certain alleged anomalies in the economic offers submitted by certain participants to the SIC 4 Tender, the ICA started an investigation under Article 101 TFEU into the conduct of the companies competing in the said tender procedure.
In its final decision,[2] the ICA found that the Companies coordinated their bidding strategy according to a “chessboard” pattern. The ICA also found that the Companies had exchanged sensitive information before and after submitting their bids. Moreover, the Companies’ bidding strategies were economically irrational, and could only be explained by their participation in a collusive scheme. According to the ICA, the cartel was aimed at sharing the lots between the participants in a way that allowed them to retain their historical market shares. However, the alleged anticompetitive strategy was not fully implemented, as the Companies faced aggressive competition from two undertakings that did not take part in the cartel, and lost certain lots to them.
As a result, the following fines were imposed on the Companies: €1,359,022 on Com Metodi, €1,173,387 on Igeam, and €700,182 on Sintesi.
The rulings of the TAR Lazio
The TAR Lazio annulled the ICA decision on the grounds that the key elements for establishing a concerted practice, as defined by the national and EU case-law, were missing in the present case. In the Court’s view, the finding of infringement in the decision was not supported by sufficient evidence.
First, the TAR Lazio held that there was a lack of exogenous evidence of Sintesi’s involvement. The ICA stated that Sintesi was part of the collusive scheme on the basis of a report found at Igeam’s premises, which could actually be interpreted in various ways. Without any document to prove that Sintesi was involved in the collusive scheme, it was not possible to assume the existence of a bidding strategy among the Companies according to a “chessboard” pattern. In particular, if Sintesi was not involved in all the preparatory and strategic phases prior to the tender, it would be difficult to envisage its collusive connection with the two other companies.
Secondly, the TAR Lazio held that the Companies provided an alternative and plausible explanation of the facts relied upon by the ICA to establish the existence of the alleged anticompetitive conduct. For example, the TAR Lazio agreed with the Companies that the offers submitted for certain lots did not pursue a bid-rigging scheme, but rather an efficiency objective, to the extent that their respective offers were targeted to regions that they already covered in their commercial activities, in order to pursue an optimization of customer management costs, by taking advantage of their previous knowledge of these customers. Furthermore, the TAR Lazio noted that Sintesi had submitted a plausible explanation of its conduct based on technical andmathematical statements, which were not taken into account by the ICA.
Thirdly, the TAR Lazio held that the ICA did not properly assess the conduct of the other participants to the SIC 4 Tender, as well as the overall number of the participants in the tender procedure. In particular, in light of the significant number of competitors which were not parties to the alleged cartel, the latter could not have plausibly been successful.
[1] TAR Lazio, Judgment Nos. 8764, 8773 and 8780 of July 27, 2020.
[2] ICA, Decision of September 18, 2019, No. 27908, Case I822 – Consip/Gara Sicurezza e Salute 4.