On October 23, 2020, the TAR Lazio rejected the appeals filed by Ecosumma S.r.l., Bifolco & Co. S.r.l., Ecologica Sud S.r.l., Langella Mario S.r.l. (the “Companies”) and Green Light Servizi Ambientali S.r.l. (“Green Light”) against a decision issued by the ICA in 2019, finding that the Companies had coordinated their bidding behavior in a tender for medical waste management in the Campania Region, with the assistance of the third-party consulting firm Green Light.
On January 30, 2019, the ICA found that the Companies rigged a 2016 public tender for the collection and disposal of medical waste in the Campania Region. According to the ICA, the anticompetitive collusion had been facilitated by a third-party consulting firm (Green Light), which had allegedly coordinated the Companies’ behavior by acting as an advisor in the context of the tender.
The investigation was prompted by complaints submitted by So.re.sa. S.p.A. (“So.re.sa.”), the central purchasing entity for the Campania Region with respect to the health sector. In particular, So.re.sa. alleged that there had been an anomalous pattern in the bidding behavior for the six lots of the tender. According to So.re.sa., the technical content of the bids submitted by the Companies (one for each lot) was identical. For this reason, So.re.sa. claimed that it could not be excluded that the offers had been drawn up in a coordinated manner. In addition, So.re.sa. alleged that the Companies had submitted bids (which did not overlap with each other) only with respect to the lots in which they were the incumbent provider.
Following an investigation, the ICA found that the Companies had unlawfully coordinated their bidding strategies in the So.re.sa. tender, also with the assistance of Green Light, which had acted as a third-party consultant to all of the Companies. According to the ICA, Green Light facilitated the anticompetitive scheme, by ensuring that the Companies would reciprocally respect the lots’ allocation previously defined. This result had been made possible by the fact that, in order to avoid any conflict of interest, Green Light could not have assisted more than one company for the same lot. Accordingly, before assisting each company, Green Light had requested each company to undertake that they would not submit overlapping bids with the other companies. According to the ICA, the existence of an anticompetitive scheme was confirmed by conspicuous evidence, including the consultancy contracts entered into by each Company with Green Light, which indicated the lot for which each Company would bid and had been shared beforehand among the Companies.
The ICA categorized the agreement as a very serious restriction by object, since it had hindered the competitive process for the award of a tender. Accordingly, it fined the Companies and Green Light over Euro 1.3 million overall.
The rulings of the TAR Lazio
The TAR Lazio entirely dismissed the actions for annulment lodged by the Companies and Green Light against the ICA decision.
First, the TAR Lazio rejected the procedural claims submitted by one of the Companies (Bifolco & Co. S.r.l.).
In particular, the Company claimed that the decision had been unlawfully adopted by only two members of the Board of the ICA (instead of three), due to delays in the appointment of the new President. The TAR Lazio rejected this claim on the ground that, even though, pursuant to Law No. 287/90, the Board of the ICA is a collegial body composed of three members (including the President), there are no requirements as to the quorum for validly adopting a decision. Accordingly, it is for the ICA to autonomously decide on the composition of the Board and to define the majorities required for the purposes of adopting valid decisions. In the TAR Lazio’s view, the fact that, in the absence of the President, the vote of the eldest member of the Board prevails in case of tie does not invalidate the decision, as this can be justified in the exceptional and temporary circumstances related to the need to appoint a new President. Moreover, the applicant had not provided any evidence that the two members of the Board had voted differently. Finally, the TAR noted that, even under the ordinary regime provided for by ICA Resolution No. 26614/2017, it is possible that a decision is taken by one member of the Board, as the vote of the President is counted twice in case of tie.
The concerted practice
After recalling well-established case law on the standard of proof required for the existence of a concerted practice, the TAR Lazio held that the analysis carried out by the ICA in the case at hand was correct.
In particular, according to the TAR Lazio, the ICA correctly held that the Companies had carried out a complex concerted practice. The ICA clearly identified its anticompetitive purpose, i.e., the Companies’ intention to rig the results of the So.re.sa. tender by eliminating competition and allocating the lots, also based on their position as the incumbent operator in the lot concerned. In this respect, the TAR Lazio found that the Companies had failed to provide any alternative acceptable explanation for their bidding behavior, especially in light of the fact that they clearly had the resources necessary to submit offers for more than one lot.
Furthermore, the TAR Lazio found that the ICA provided substantial evidence of the involvement of Green Light, which had facilitated the collusive scheme and ensured the avoidance of any bidding overlap between the Companies. In particular, the TAR Lazio held that the draft agreement between one of the Companies and Green Light, which had been shared among all the Companies before each of them signed an autonomous agreement with the consultancy firm, amounted in practice to an indirect non-compete agreement between the Companies. This was due to the fact that the Companies knew that Green Light could not assist them in connection with offers submitted for the same lots. Accordingly, once the Companies had entered into consultancy agreements with Green Light, they clearly knew that they were not competing for the same lots. In the TAR Lazio’s view, the sharing between the Companies of a draft contract including an implicit non-compete clause amounted to “qualified contact” between them, thereby constituting exogenous evidence of the existence of anticompetitive behavior.
The TAR Lazio also held that the ICA correctly defined the bid rigging as a restriction by object, and for this reason there was no need to engage in an analysis of the possible anticompetitive effects of the concerted practice.
Finally, the TAR Lazio confirmed the ICA decision also with respect to the quantification of the fines imposed on the Companies and Green Light, as well as the rejection of the arguments alleging inability to pay submitted by some Companies, for lack of sufficient evidence.
The ICA fined an association of driving schools for price fixing
On October 13, 2020, the ICA imposed a Euro 10,059 fine on “Calabria 1”, a consortium of 40 driving schools active in the province of Cosenza (the “Consortium”), for an anticompetitive decision of association of undertakings aimed at fixing the minimum fees to be applied by the driving schools for the provision of their professional services. In particular, the ICA found that since 2017 the Consortium had adopted a detailed pricing list setting fixed minimum fees for services to be provided by the driving schools.
The ICA noted that agreements aimed at setting minimum prices are anticompetitive regardless of their binding nature (as the price indications they contain may in any event influence behavior, thereby distorting market conditions). According to the ICA, in the case at hand there was proof that the pricing list adopted by the Consortium actually bound the associated driving schools to respect the rates contained therein. This circumstance, together with the fact that the Consortium refused to amend its conduct following the ICA’s requests, and the fact that the driving schools participating in the Consortium accounted for approximately 40% of the relevant market, led the ICA to conclude that the violation was particularly serious.
 TAR Lazio, Judgment No. 10765 of October 22, 2020 and Judgment Nos. 10789, 10790, 10791 and 10792 of October 23, 2020.
 ICA, decision of January 31, 2019, No. 27546, Case I816 – Gara SO.RE.SA. rifiuti sanitari Regione Campania.
 ICA, decision of October 13, 2020, No. 28380, Case I836 – Tariffe autoscuole nella provincia di Cosenza.