On September 28, 2020, the Council of State[1] dismissed the appeal brought by Buzzi Unicem S.p.A. (“Buzzi”) for the revocation of a judgment previously delivered by the same court, which upheld the lower court’s ruling as well as an ICA decision fining an alleged cartel in the cement sector.[2] Buzzi challenged the judgment before the Council of State on grounds of error of fact.[3]

The Council of State ruled that an error of fact which may give rise to revocation must: (i) result from an erroneous or omitted perception of the material content of the documents submitted in the proceedings, which led the judicial body to take a decision on the basis of a false factual assumption, i.e. to consider proven a fact which is actually non-existent, or to consider non-existent a fact which has been proven; (ii) relate to a contentious point on which the decision did not expressly state reasons; and (iii) regard a decisive element in the decision to be revoked, so that the latter was caused by the court’s mistake.

According to Buzzi, the error of fact committed by the adjudicating court in its previous judgment referred to: (a) Buzzi’s alleged participation in the cartel; and (b) Buzzi’s ground of appeal concerning the methodology followed by the ICA in setting the fine.

Regarding its alleged participation in the cartel, Buzzi claimed that the Council of State based its decision on an erroneous perception of the material content of the documents submitted in the proceedings. In its view, even if such documents could in the abstract prove the existence of a cartel, they did not refer to Buzzi and, in any event, did not prove that the applicant took part in the infringement. In this respect, according to Buzzi, the Council of State erroneously assumed that the parts of the ICA fining decision referring also to Buzzi constituted evidence against it. Also, the court overlooked Buzzi’s defenses, taking the view that they were mainly relevant with regard to secondary and minor aspects of the infringement.

The Council of State held that Buzzi extensively put forward its arguments concerning the alleged cartel and its non-participation in it in the appeal proceedings for the annulment of the TAR Lazio judgment. Therefore, by having abusive recourse to the revocation remedy, Buzzi merely reiterated its defenses to call into question the Council of State assessment. According to the Council of State, what Buzzi claimed to be an erroneous perception by the court of the material content of the documents submitted in the proceedings constituted instead, at the most, an error of assessment or of interpretation of the facts, concerning an issue that the judgment fully covered, which as such could not be challenged by an application for revocation. Moreover, the Council of State recalled that, according to settled case law, the fact that a court does not expressly rule on every single argument put forward by a party in support of its claim does not constitute a ground for revocation.

On similar grounds, the Council of State declared Buzzi’s application inadmissible also with regard to the alleged flaws in the ICA’s calculation of the fine.

[1]              Council of State No. 5684/2020.

[2]              Council of State No. 6985/2019.

[3]              Pursuant to Articles 106 of the Italian Code of Administrative Procedure and 395(4) of the Italian Code of Civil Procedure.