On May 6, 2021, the Council of State rejected the appeals lodged by Elifriulia S.r.l and Star Work Sky S.a.s. (the “Parties”) against the TAR Lazio judgment that upheld the 2019 ICA decision fining the Parties approximately €67 million for restrictive agreements concerning certain helicopter transport services.
The ICA decision
The ICA found that the Parties had engaged in two separate cartels.
First, it found that the Parties – together with Airgreen S.r.l., Eliossola S.r.l., Elitellina S.r.l. and Heliwest S.r.l. – had agreed not to offer significant rebates (which in many cases were lower than 1%) in the context of tenders for helicopter forest fire-fighting services between 2005 and 2018. As a result, contracting authorities ended up paying higher prices for the relevant services.
Secondly, the ICA found that the Parties – together with Airgreen S.r.l., Babcock Mission Critical Services Italia S.p.A., Babcock Mission Critical Services International S.A., Eliossola S.r.l., Elitellina S.r.l., Heliwest S.r.l. and Air Corporate S.r.l. – entered into a price-fixing agreement within the Italian Helicopter Association, of which they were all members of from 2001 to 2017. In particular, the companies agreed on a price list for aerial work services and passenger transport, divided by type of helicopter.
The TAR Lazio judgments
The TAR Lazio substantially confirmed the ICA’s assessment, although it ruled that Air Corporate S.r.l. could not be held liable for the infringements and annulled the fine that the ICA had imposed on it.
In particular, the TAR Lazio: (i) confirmed the definition of the relevant market as national in geographic scope, although certain tenders of the first cartel were organized at the regional level; (ii) confirmed that the evidence relied on by the ICA was sufficient to establish the unlawfulness of the conduct, for which the applicants failed to provide alternative – and lawful – explanations; and (iii) confirmed that the bid-rigging and the price-fixing were two separate infringements, mainly because the participants were different and the agreements pursued different goals and concerned partly different services.
The ruling of the Council of State
The Council of State upheld the judgment of the TAR Lazio.
First, the Council of State dismissed the Parties’ argument that the ICA decision should be set aside because it had been adopted by only two members of the Board and without the participation of the ICA’s President (who had not yet been appointed by the Italian Parliament). The Council of State confirmed that the ICA decision complied with the principle of collegiality and the rules governing the functioning of the ICA.
Secondly, with respect to the bid-rigging conduct, the Court took the view that the ICA correctly found that the Parties’ conduct was a single and complex infringement, and rejected the Parties’ attempt to “break up” the overall unlawful conduct into a number of constituent elements, with a view to subjecting it to separate limitation periods.
Thirdly, the Council of State agreed with the ICA’s findings also in relation to the price-fixing conduct. It noted that agreements which are capable of diminishing and altering the free determination of prices fall under the said category, and so do recommendations of associations of undertakings to maintain a certain price level.
Lastly, the Council of State upheld the ICA’s finding that there was no overlap between the two cartels, which differed in terms of scope, duration, activities and participants affected. It therefore held that the ICA was right in concluding that the two cartels were separate, instead of one single and complex agreement.
 Council of State, Judgments Nos. 3555 and 3566/2021.
 TAR Lazio, Judgments of May 18, 2020, Nos. 5261, 5263, 5265, 5266, 5264, 5267, 5272 and 5274.
 ICA, Decision of February 13, 2019, No. 27563, Case I806 – Affidamento appalti per attività antincendio boschivo.
 TAR Lazio Judgment of May 18, 2020, No. 5275.