By an order issued on January 18, 2022,[1] the Italian Supreme Court rejected as inadmissible an application lodged by Kuadra S.r.l. (“Kuadra”) for cassation of a ruling delivered in 2019 by the Council of State,[2] which upheld an ICA decision fining Kuadra for its participation in an alleged anticompetitive agreement aimed at altering the outcome of a public tender for cleaning and maintenance services (the “Decision”),[3] after the TAR Lazio had set it aside at first instance.[4]

In the Decision the ICA found that four companies active in the provision of public school cleaning services (including Kuadra) had unlawfully coordinated their offers in the context of a public tender by Consip (Italy’s national central purchasing body for the Public Administration). The ICA imposed on Kuadra a fine of almost €6 million (and fines totalling €110 million on the four cartel members).

In 2016 the TAR Lazio annulled the fine imposed on Kuadra, holding that the ICA had failed to provide an adequate statement of reasons for its findings regarding the company’s involvement in the unlawful conduct, also in light of the plausible alternative explanations put forward by Kuadra.

However, on appeal, the Council of State reversed the lower court’s ruling. It ruled that Kuadra’s involvement in the collusive scheme was sufficiently established, in light of the documentary evidence relied upon by the ICA. The Council of State asserted that – since the anticompetitive agreement found by the ICA amounted to an infringement of competition “by object” – it was not necessary to prove its anticompetitive effects on the market. In addition, the Council of State held that Kuadra’s plea concerning the entity of the fine was inadmissible, on the ground that the company merely referred to arguments put forward in the briefs submitted to the ICA in the course of the latter’s investigation, instead of challenging specifically the TAR Lazio’s conclusions.

Kuadra then filed an application to the Court of Cassation against the Council of State’s judgment by raising certain pleas relating to jurisdiction.[5] First, Kuadra claimed that the Council of State committed an error on the merits by holding that – for the purposes of establishing a “by object” infringement of competition law – it is not necessary to assess whether an agreement is capable of restricting competition in concrete terms, in light of the relevant legal and economic context. Secondly, Kuadra claimed that the Council of State committed an error on the procedure by wrongly declaring inadmissible its plea concerning the excessive amount of the fine, and that accordingly it misapplied the rule that requires applicants to “specifically set out the reasons for” their grounds of appeal. In both cases, Kuadra claimed that the Council of State violated specific provisions of EU law.

The Supreme Court sitting in Grand Chamber dismissed Kuadra’s application, and declared it inadmissible. Referring to the case-law of the Italian Constitutional Court,[6] to its own precedents as well as to the recent Randstad judgment of the EU Court of Justice,[7] the Court of cassation clarified that applications lodged against decisions of the Council of State for reasons of jurisdiction cannot raise pleas concerning alleged procedural or substantive violations (such as the ones raised by Kuadra).

[1]      Supreme Court of Cassation, Order of January 18, 2022, No 1454.

[2]      Council of State, Judgment of July 31, 2019, No. 5401.

[3]      Decision of December 22, 2015, No. 25802, Case I785 – Gara Consip servizi di pulizia nelle scuole.

[4]      TAR Lazio, Judgment of October 14, 2016, No. 10305.

[5]      Pursuant to Articles 111(8) of the Italian Constitution and 110 of the Italian Code of Administrative Procedure.

[6]      Constitutional Court, Judgment of January 18, 2018, No. 6.

[7]      Case C-497/20, Randstad, EU:C:2021:1037, § 81 (holding that EU law does not preclude “a provision of a Member State’s domestic law which, according to national case-law, has the effect that individual parties […] cannot challenge the conformity with EU law of a judgment of the highest court in the administrative order of that Member State by means of an appeal before the highest court in that Member State’s judicial order”).