On July 22, 2021, the TAR Lazio dismissed in full the applications filed by Coopservice s.coop.p.a. (“Coopservice”), Allsystem s.p.a. (“Allsystem”), Istituti di Vigilanza Riuniti s.p.a. (“IVRI”) and its parent company Biks Group s.p.a. (“Biks”), Italpol Vigilanza s.r.l. (“Italpol”) and its parent company MC Holding s.r.l. (“MC Holding”), as well as Sicuritalia s.p.a. (“Sicuritalia”) and its parent company Lomafin SGH s.p.a. (“Lomafin”; collectively, the “Parties”) for annulment of the 2019 decision adopted by the ICA in Case I821 (the “Decision”).[1] In the Decision the ICA: (i) found that the Parties participated in a cartel affecting the outcome of several open tender procedures for the provision of private security services, launched by certain contracting authorities located in the regions of Lombardy, Emilia Romagna and Lazio between 2013 and 2017; (ii) ordered the Parties not to engage in similar conduct in the future; and (iii) fined the Parties more than €30 million overall.[2]
The Decision was the outcome of proceedings initiated in February 2018 following the ICA’s receipt of several complaints of alleged bid- rigging. The scope of the investigation was subsequently extended to include alleged coordination in additional tenders for the award of security services to public and private entities,[3] and a “compensation scheme” whereby the Parties allegedly put in place a system of regular mutual assignments of services to regulate their relationships.[4]
In the ICA’s view, the alleged cartel affected approximately 23% of the main tenders in which the Parties participated between 2013 and 2017 in Lombardy, Emilia Romagna and Lazio, where their activities tended to overlap. As found in the Decision, the contested practices constituted a restriction by object under Article 101 TFEU, comprising a single, complex and continuous anticompetitive scheme aimed at sharing lots among the participants and allowing them to retain their historical market shares.
In the judicial review proceedings before the TAR Lazio, the Court fully upheld the ICA’s findings, confirming that the Parties had entered into a series of anticompetitive agreements aimed at coordinating their participation in some tenders, which were particularly important in terms of value and geographical scope, in areas where the Parties were historically active. The Parties had done so by using in an anticompetitive manner tools that would have otherwise been fully legitimate, such as a temporary consortium of undertakings, and recourse to subcontracting.[5]
In support of its ruling, the TAR Lazio referred to the case law under which anticompetitive conduct repeated by different undertakings over a certain period of time, comprising in part agreements and in part concerted practices, can amount to a single cartel. Consequently, a participant can be held liable for all actions of a cartel, even if it does not personally take part in all of them, once it has consented to the objective of the anticompetitive conduct itself.[6] In the TAR Lazio’s view, even cartel members whose participation is limited (because they do not take part in all aspects of the anticompetitive conduct or they play a minor role in it), ultimately contribute to the overall infringement. In such a case, in order to establish the liability of a company that claims not to have participated in a cartel or to have played only a limited role, it is necessary to demonstrate both that it intended to contribute to the common objectives pursued by all participants and that it was aware of the planned conduct or was at least able to foresee it.[7]
The TAR Lazio found that the Decision fully addressed these issues, taking into account the dense network of interwoven and bilateral relationships in place between the Parties, which amply demonstrated that they were all aware of the objective of preserving their market positions and thus restrict competition.
The TAR Lazio also found that there was no reasonable justification, economic or otherwise, for the Parties’ coordination, and that the ICA’s calculation of the fines imposed on them had been correct.
[1] See TAR Lazio Judgments Nos. 8810, 8815, 8816, 8817 and 8825 of July 22, 2021.
[2] See ICA Decision No. 27993 of November 12, 2019, Case I821, Affidamenti vari di servizi di vigilanza privata. For a report of this decision, please see Cleary Gottlieb, Italian Competition Law Newsletter, December 2019.
[3] Such as Azienda Regionale Centrale Acquisti S.p.A., Trenord S.r.l., Expo 2015 S.p.A., Intercent-ER, and ATAC S.p.A.
[4] See ICA Decision No. 27192 of May 29, 2018.
[5] The TAR Lazio upheld the ICA’s findings that, in some cases, the Parties participated in the tender with fictitious temporary consortia of undertakings, which concealed a geographical sharing of the lots; in other cases, before the tender, the Parties entered into opt-out agreements in which certain undertakings committed not to compete in exchange for the assignment of subcontracting quotas. In addition, the Parties regulated their relationships on a bilateral basis through the mutual assignment of security services, both in private and public tenders. Finally, in other cases, the agreement resulted in all the Parties refraining from participating in the tenders, again in the pursuit of the same common purpose of eliminating competition between them.
[6] See ECJ, C-49/92 P, Commission v Anic partecipazioni.
[7] See id., § 87. See also TAR Lazio Judgments Nos. 8500 and 8502 of July 25, 2016.