In a series of judgments delivered on May 24, 2021,[1] the TAR Lazio almost entirely upheld an ICA decision that imposed over €287 million in fines on 23 companies and one trade association for two distinct anticompetitive agreements in the corrugated cardboard sector.[2]

Background: the ICA decision

The ICA’s investigation originated from a complaint filed in October 2016 by a trade association of non-vertically integrated box manufacturers, concerning an alleged anticompetitive agreement in the corrugated cardboard sector. Before and during the formal investigation opened by the ICA in March 2017, four companies submitted leniency applications.

In its decision of July 2019, the ICA concluded that the investigated parties’ conduct amounted to two separate single, complex and continuous infringements, implemented in two different markets, which were vertically related to each other, namely the (upstream) market for corrugated cardboard sheets and the (downstream) market for corrugated cardboard boxes. The two cartels took place from 2004 and 2005, respectively, to 2017.

In particular, according to the ICA, the upstream cartel was aimed at: (i) fixing the price of corrugated cardboard sheets for non-integrated manufacturers of corrugated cardboard boxes; and (ii) fixing and coordinating the volume of production, as well as the production plant downtime and shut-downs, in order to reduce output so as to support the increase in the price of the sheets and preserve profitability.

The downstream cartel was aimed at: (i) fixing the level of general increases in the prices of corrugated cardboard boxes for all customers; (ii) partitioning clients and supply contracts; and (iii) defining other relevant contractual terms, such as payment terms.

Despite several similarities between the two cartels (e.g., in terms of structure, methods, duration, sector and parties involved), the ICA found that they were “clearly separate”, including because they: (i) were implemented in two different (albeit vertically related) product markets; (ii) mostly involved different parties; and (iii) were different in their respective content and functioning.

The finding of two distinct infringements led the ICA to impose two sets of fines: (i) a total fine of approximately €110 million on the companies that participated in the upstream cartel; and (ii) a total fine of approximately €178 million on the members of the downstream cartel. Due to the long duration of many parties’ involvement in one or both of the cartels, the level of most fines was capped to 10% of the total turnover of each of the parties.[3]

The judgments of the TAR Lazio

All the investigated parties (except for the leniency applicant, which was granted full immunity from fines) applied to the TAR Lazio for annulment of the ICA decision and requested that its effects be suspended by means of an interim measure, which the Court granted in November 2019. In the rulings on the merits of the applications, however, the TAR Lazio rejected nearly all of them.

Only four applicants[4] succeeded in having the ICA decision annulled as far as the imposition of the fine was concerned. The said companies were found by the ICA to have participated in only one of the two cartels and, in any event, for a very short period. The Court concluded that, all things considered, the evidence against these four companies was mainly circumstantial and, in any case, not objective, precise and consistent enough to establish a breach of Article 101 TFEU.

Except for the above, the TAR Lazio upheld the ICA decision.

Among other things, the TAR Lazio confirmed that: (i) the fact that the parties could access the leniency statements only after they received the statement of objections did not breach their rights of defense, which in any event were respected because the parties were given 60 days to prepare their written replies to the statement of objections; (ii) the fact that a company participated only in some but not all aspects of a complex infringement was irrelevant to the extent that such company was or should have been aware of the other aspects of the infringement in which it did not participate directly; and (iii) the ICA could lawfully establish a company’s participation in an infringement based on either a leniency statement corroborated by documentary evidence, or two converging leniency statements.

A particular feature of this case was the issue whether the two cartels were effectively distinct, as the ICA concluded.

As mentioned, the ICA imposed two fines on the companies found to have participated in both cartels. Each fine was capped at 10% of their respective total turnover, with the result that the overall fine imposed on these companies amounted to 20% of their total turnover. Instead, had the cartels been characterized as being part of one and the same infringement, also the overall fine would have been one, subject to the ceiling of 10% of the total turnover.

The companies fined for the two cartels thus claimed before the TAR Lazio that there existed only one comprehensive cartel, noting, among other things, that the alleged two cartels: (i) shared a common plan to push the price increases in raw material as downstream along the production chain as possible; (ii) interacted and supported one another; (iii) took place in two directly and vertically related markets; (iv) overlapped in time; and, to some extent, (v) overlapped in terms of legal as well as natural persons participating in them. Moreover, even some leniency statements supported the view that the two cartels were actually one and the same.

The TAR Lazio rejected also these claims. It noted that the crucial issue was whether the overall conduct under investigation pursued the same plan. All the other criteria, including those indicated by the applicants, could only help establishing the existence of a common plan, whose absence would make them irrelevant.

That said, while the TAR Lazio seemed to acknowledge that the two cartels could have shared a common plan to pass on price increases in raw materials, it ruled that this was not sufficient to conclude that the two cartels found by the ICA were in fact a single cartel. In particular, according to the TAR Lazio, for there to be a single cartel, the undertakings that only participated in the downstream cartel had to share the same plan of passing on price increases in raw materials to their own customers and also be aware that the upstream cartel contributed to this plan.

Although some evidence could point at least to some degree of such awareness, the TAR Lazio ruled that this requirement was not met. In particular, the elements relied upon by the applicants to show that the two cartels were a single infringement were not sufficient to establish, “with certainty”, that all participants in the downstream cartel (particularly those that were not also part of the upstream cartel) were aware of the existence of, and the plan pursued by, the members of the upstream cartel.

[1]      TAR Lazio, Judgments Nos. 6040, 6044, 6047-6055, 6072-6076, 6078-6080, 6082-6085, 6087 and 6090/2021.

[2]      ICA Decision of July 17, 2019 No. 27849, I805, Prezzi del cartone ondulato.

[3]      Pursuant to Article 15 of Law No. 287/1990, which provides that, for each undertaking and association of undertakings participating in an infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.

[4]      I.e., Alliabox Italia S.p.A., Ondulati del Savio S.r.l., Sandra S.p.A., and Toppazzini S.p.A.. See TAR Lazio, Judgments of May 24, 2021, Nos. 6044, 6074, 6083 and 6090.