On September 6, 2021, the Council of State dismissed an appeal brought by the ICA[1] against a TAR Lazio judgment[2] that annulled an ICA decision[3] concerning the parent company – AIRI S.r.l.(the “Parent”) and its subsidiary Air Company S.r.l. (the “Subsidiary”, together, the “Parties”) – accused of participating in a cartel regarding helicopter transport services.


The ICA Decision

In 2019 the ICA found that the Parties, together with seven other undertakings and the Italian Helicopter Association (IHA) (the “Investigated Parties”), had engaged in a price-fixing agreement.

According to the ICA, the Investigated Parties had entered into a price-fixing agreement within the IHA, which they were all members of from 2001 to 2017. In particular, the ICA asserted that the companies had agreed on a price list for aerial work services and passenger transport, divided by helicopter type.

The TAR Lazio judgment

The Parties applied for the annulment of the ICA decision. The Parent claimed that the ICA wrongly applied the parental liability presumption (the “PLP”)[4], whereas the Subsidiary pointed out that it essentially carried out passenger transport services on behalf of private customers (for 95% of its revenues) and that, in general, it had never participated in public tenders for the provision of helicopter services.

Moreover, in its view, the ICA had wrongly considered “air work services” and “passenger transport” as part of the same relevant market, but had proved the existence of anticompetitive effects only for air work services. The Subsidiary therefore asserted that its activities were completely unrelated to the anticompetitive conduct of the alleged cartel.

The TAR Lazio granted the Parties’ application and pointed out that the ICA had failed to establish whether the price list concerned the activity carried out by the Subsidiary, and the actual existence of a competitive relationship between the Subsidiary and the other members of the IHA. In other words, the TAR Lazio ruled that the Parties’ anticompetitive conduct did not concern passenger transport, and that, therefore, no competitive relationship could be established between the Subsidiary and the other members of the IHA.

In light of the above, the TAR Lazio considered absorbed the other pleas brought by the Parent, concerning the correct application of the PLP by the ICA.

The Council of State judgment

The ICA appealed against the TAR Lazio’s ruling, but on September 6, 2021, its application was rejected.

The Council of State stated at the outset that the ICA had mistakenly applied the PLP by applying it as if it were an irrebuttable presumption. It noted, in this respect, that, where the parent company offers some evidence of the fact that it and its subsidiary do not constitute a single economic unit, the ICA can no longer rely on the PLP and is bound to discharge its burden of proof by showing that the parent actually exercised its influence over the subsidiary in the specific context of the contested anticompetitive behavior.

Accordingly, the finding of a situation of mere financial control by one undertaking over another, like the one that the Parent exercised on the Subsidiary, was not sufficient for considering the two undertakings as a single economic unit.

Furthermore, the Council of State rejected the ICA’s grounds of appeal. In particular, it did not share the view that the TAR Lazio had proposed its own definition of the relevant market. Indeed, in the Court’s view, the TAR Lazio merely noticed a logical fallacy in the description of the relevant market offered by the ICA, as it concerned services that were not at all offered by the Parties.

[1]      Council of State, Judgment of September 6, 2021, No. 6214.

[2]      TAR Lazio Judgment of May 18, 2020, No. 5275.

[3]      ICA, Decision of February 13, 2019, No. 27563, Case I806, Affidamento appalti per attività antincendio boschivo.

[4]      According to the parental liability doctrine, if a parent company exercises a decisive influence over its subsidiary, it can be held liable for the infringement of competition rules committed by its subsidiary. See, e.g., Court of Justice, Judgment of January 27, 2021, C-595/18, Goldman Sachs v. Commission, EU:C:2021:73.