On February 1, 2022, the ICA imposed a fine of approximately €10 million on G2 Misuratori S.r.l., Maddalena S.p.A., Itron Italia S.p.A., Sensus Italia S.r.l. and WaterTech S.p.A. (the “Companies”) for having participated, between December 2011 and September 2019, in an agreement restricting competition in at least 161 public tenders launched by national integrated water service operators for the procurement of meters for the legal measurement of water consumption. Because of their direct involvement in the approval of participation in tenders of particular importance, the Companies’ parent companies were also held liable and fined by the ICA (the “Decision”).[1]

In particular, the ICA found that the Companies had engaged in a single and continuous collusive strategy, which had allowed them to determine, for each tender: (i) which of the Companies was to be awarded the tender; and (ii) how the Companies other than the intended awardee were to behave in the context of the tender (e.g., by setting the minimum price or maximum discounts, or giving indications not to participate with a specific justification). As a result of the infringement, the Companies won more than 90% of the lots in the relevant period.

In the Decision, the ICA relied on a complex set of evidence, which included an anonymous complaint filed by an employee of one of the Companies, as well as an anonymous document sent to the ICA shortly after the opening of the investigation, comprising seventy faxes that the Companies had exchanged among themselves before the submission of certain bids. According to the ICA, the findings of the investigation demonstrated that the Companies coordinated their conduct ahead of the corresponding tenders and also set up informal meetings between their representatives.

In the course of the proceedings, the Companies challenged the probative value of the anonymous document sent to the ICA, on which the whole Decision was based, as it consisted just of a number of sheets that did not even allow to identify the sender or recipient of the faxes. In their view, it could not be ruled out that the document was created artificially, for example by a former employee or a dissatisfied co-worker. However, the ICA held that the elements emerged during the investigation confirmed the reliability of the document, and asserted that the Companies’ attempt to diminish its significance was based on “a superficial and incomplete reading.

[1]      ICA Decision No. 29981 of February 1, 2022, Case I835 – Mercato dei contatori d’acqua.