In two judgments delivered on May 20, 2021,[1] the Council of State reinstated the original amounts of the fines that the ICA imposed on Fertitalia S.r.l. (“Fertitalia”) and Ni.Mar. S.r.l. (“Nimar”), which the TAR Lazio had reduced at first instance.[2]
In particular, the ICA found that Fertitalia and Nimar (as well as Nuova Amit S.r.l. and S.E.S.A. S.p.A.) infringed Article 101 TFEU by rigging a public tender procedure launched by Ecoambiente S.r.l., a company controlled by the Rovigo Municipality, to award the service of separate collection and recycling of waste in the province of Rovigo, Italy.[3] The ICA fined Fertitalia approximately €215,000 and Nimar approximately €260,000.
The TAR Lazio concluded that the ICA had erroneously calculated the fines imposed on the applicants and reduced them accordingly. According to the TAR Lazio, the ICA: (i) should have considered as “value of sales” the value of the contract awarded (the duration of which was one year), irrespective of its possible one-year extension; and (ii) could not lawfully include in the fine a so-called “entry fee” of 15% without sufficiently demonstrating why this additional amount was needed, taking it into account that the economic offers by Fertitalia and Nimar were higher than, but “essentially close” to, the average market prices.
On appeal, the Council of State partially annulled the TAR Lazio’s ruling.
In relation to the value of sales, the Council of State observed that the contract to be awarded by Ecoambiente S.r.l. could be extended and it was in fact extended. It added the following: (i) the possibility of extension was expressly mentioned in the tender documents; (ii) the tenderers should have taken into account the possible extension of the contract when submitting their offers; (iii) contracting authorities are likely to extend the duration of a contract as a matter of practice, when the extension is contemplated in the tender documents. Therefore, the ICA had correctly considered the actual two-year duration of the awarded contract for fining purposes.
In relation to the entry fee, the Council of State found that the ICA had correctly taken into account the particular aspects of the case. In particular, the ICA correctly found that the infringement was “very serious”, took place in the context of a public tender procedure, and (ii) effectively resulted in higher economic offers submitted by the parties. Therefore, the Council of State agreed with the ICA that the need to ensure a sufficiently deterrent effect justified the inclusion of the entry fee in the fines applied to Fertitalia and Nimar.
[1] Council of State, Judgments Nos. 3900 and 3901/2021.
[2] TAR Lazio, Judgments of December 5, 2017, Nos. 1194 and 1195.
[3] ICA, Decision of July 29, 2015, No. 25589, I784, Ecoambiente-Bando di gara per lo smaltimento dei rifiuti da raccolta differenziata.