In a series of non-final judgments, published between February 15 and 25, 2022 (the “Judgments”), the Council of State upheld the appeals for revocation filed by Medicair Italia S.r.l., Medigas S.r.l., Linde Medicale S.r.l., Sapio Life S.r.l. and Vivisol S.r.l. (the “Parties”), as it found a number of material errors in certain previous judgments of the same court.
The Judgments concern a 2016 decision of the ICA to impose on the Parties a total fine of approximately €47 million for having put in place a horizontal agreement aimed at distorting the normal course of tenders for the provision of oxygen therapy and home ventilation therapy services launched by three different contracting authorities, namely SORESA, ASL Milano 1 and ASUR Marche. In particular, with regard to ASL Milano 1, the Parties allegedly agreed to boycott three tenders for the provision of home mechanical ventilation services, in order to get the lots involved in the following tender at a much higher price than the one originally intended by the contracting authority; with regard to ASUR Marche, the Parties allegedly coordinated their strategies so as to affect the outcome of the call for tender launched in 2010 for the provision of home oxygen therapy and home mechanical ventilation services; with regard to SORESA, the Parties allegedly put in place a coordination strategy aimed at, inter alia, keeping the price of home mechanical ventilation services in Campania Region artificially high and hindering the launch of a public tender for the award of the service.
In their first appeal, the Parties challenged the ICA’s analysis on grounds, inter alia, that the Authority had: (i) erroneously concluded that the home mechanical ventilation services offered by the Parties were fully interchangeable; (ii) failed to take into account the importance of logistics in the Parties’ decision as to which tenders to participate in; (iii) failed to consider the unprofitability of the unsuccessful tenders, which justified the Parties’ decision not to take part in the first three tenders launched by the ASL Milano 1; (iv) erroneously considered that the Parties’ ordinary advocacy activities vis-à-vis the contracting authority constituted anticompetitive behavior. The TAR Lazio upheld the objections put forward by the Parties and quashed the ICA’s decision. However, the TAR Lazio’s rulings were subsequently overturned by the Council of State, which confirmed the ICA’s decision. In particular, the Council of State found that the documentary evidence collected by the ICA (in particular, a series of communications exchanged between the Parties, showing that they had followed a common strategy) was capable of demonstrating a collusive behavior.
In the Judgments, following the appeals for revocation filed by the Parties, the Council of State acknowledged that it had reached erroneous conclusions with regard to the evidence on the profitability of the award conditions of the tender launched by ASL Milano 1. In particular, despite the objections raised by the Parties, it had wrongly assumed that the award conditions in the tender procedures boycotted by the Parties were equivalent to the auction base in a previous procedure launched by ASL Milano 1, in which the Parties had instead participated. In this respect, the Council of State had merely referred to the ICA’s assessment, without verifying that this factual assumption was correct. As a consequence, the court’s previous decisions were ultimately based on incorrect factual assumptions. In addition, the Council of State had not considered one document, relating to Medicair, that would have demonstrated the unprofitability of the prices initially proposed by ASL Milano 1 based on the company’s internal costs.
As a result, the Council of State revoked its previous judgments, and stated that the case should be re-assessed without the acknowledged factual errors.
 Council of State, non-final Judgment Nos. 1089, 1090, 1091, 1094 and 1096 of February 15, 2022; Nos. 1263, 1265, 1267 and 1269 of February 22, 2022; and Nos. 1351, 1353, 1354 and 1355 of February 25, 2022.
 Council of State, Judgment Nos. 8583, 8584, 8585, 8586, 8587, 8588, 8589, 8590 and 8591/2019 and Nos. 50, 51, 52 and 53/2020 (discussed in the December 2019 issue of this Newsletter: https://www.clearygottlieb.com/-/media/files/italian-comp-reports/italiancompetitionlawnewsletterdecember2019pd-pdf.pdf).
 ICA Decision of December 21, 2016, No. 26316, Case I792 – Gare ossigenoterapia e ventiloterapia.
 TAR Lazio, Judgment Nos. 4467, 4468, 4471, 4473, 4476, 4481, 4482, 4483, 4484, 4485, 4486, 4487 and 4489/2018.