Between August 18 and August 23, the Council of State rejected the separate appeals filed by Babcock Mission Critical Services International S.A. (“Babcock International”), Heliwest S.r.l. (“Heliwest”), Elitellina S.r.l. (“Elitellina”), Eliossola S.r.l. (“Eliossola”) and Associazione Elicotteristica Italiana (“AEI” and, jointly with Babcock International, Heliwest, Elitellina and Eliossola, the “Parties”) against judgments issued by the Regional Administrative Tribunal of Lazio (“TAR Lazio”), which had confirmed a 2019 ICA decision.[1] In particular, the ICA had fined eight providers of helicopter services and their trade association for two separate cartels, comprising: (i) an agreement not to offer significant rebates in the context of tenders for helicopter forest fire-fighting services; and (ii) agreeing on a price list for aerial work services and passenger transport.
The judgments follow two other recent decisions of the Council of State on the same matter, in which the court reached the same conclusions.[2]
In particular, the Council of State confirmed that: (i) the ICA decision complied with the principle of collegiality and the rules governing the functioning of the ICA, even though the decision had been adopted by only two members of the Board and without the participation of the President; (ii) the ICA correctly categorized the parties’ conduct as two separate, single and complex infringements; and (iii) the recommendations of associations of undertakings to maintain a certain price level may well amount to price-fixing.
In addition, with respect to Babcock International, which had been fined by the ICA jointly and severally with its subsidiary Babcock Mission Critical Services Italia S.p.A., the Council of State reaffirmed the principles established by another recent decision on group companies.[3] In particular, it confirmed that, in the case of a parent company involved in an infringement together with one of its subsidiaries, for the purpose of calculating the joint and several fines, the ICA cannot take into account the turnover of the other group companies that did not operate in Italy and did not carry out the infringement, nor they could have prevented it.[4]
[1] Council of State, Judgments of August 18, 2021 Nos. 5918 and 5920; August 20, 2021, Nos. 5972 and 5973; and August 23, 2021 No. 5992.
[2] Council of State, Judgments of May 6, 2021, Nos. 3555 and 3566. See our Italian Competition Law Newsletter, May 2021.
[3] Council of State, Judgment of July 2, 2021, No. 5058.
[4] Council of State, Judgment of August 18, 2021, No. 5918.