On May 9, 2022, the Council of State delivered three judgments in annulment proceedings brought by the addressees of a 2019 ICA decision, which found 19 companies liable for participating in a cartel aimed at rigging a tender procedure in the facility maintenance sector in Italy (the “Decision”).
On April 17, 2019, the ICA found that 15 companies allegedly participated in a cartel that affected the outcome of the so-called “Facility Management 4” tender procedure for the provision of cleaning and maintenance services for public offices throughout Italy.
The ICA found that the four main market players led a number of distinct special-purpose temporary associations of undertakings – so-called “ATIs” (i.e., associazioni temporanee di imprese) – that exchanged information about their bidding strategies during meetings. These exchanges were part of a concerted practice by which the ATIs submitted bids that never overlapped, so as to display a so-called “chessboard” pattern. In the ICA’s view, further similar information exchanges among the four undertakings took place through subcontracting and consortia.
The ICA concluded that the conduct of the investigated companies constituted a hardcore restriction of competition under Article 101 TFEU, and fined them approximately €235 million overall.
Leniency applicant C.N.S. Consorzio Nazionale Servizi Società Cooperativa (“CNS”) was granted a 50% reduction in its fine.
The judgments of the TAR Lazio
At first instance, the TAR Lazio quashed the Decision to the extent that it was addressed to Engie Energy Services International SA and Engie Servizi S.p.A. (together referred to as “Cofely”) and Consorzio Stabile Energie Locali S.c.a.r.l. (“CSEL”). According to the Court, there was no significant evidence supporting the finding that CSEL and Cofely had jointly participated in the tender with collusive purposes in the context of an ATI), and in fact a sufficient number of elements in the casefile showed that they intended to bid competitively and lawfully.
With respect to the remaining 12 other applicants, however, the TAR Lazio upheld the finding of infringement, and merely ordered the ICA to re-determine the fines originally imposed on all of them.
The Council of State’s rulings
The Council of State delivered three sets of judgments.
Upholding the TAR Judgment
The Council of State fully confirmed the TAR Lazio’s rulings – and thus the ICA’s finding of infringement – in relation to 7 companies (namely, Rekeep S.p.A., Romeo Gestioni S.p.A., Exitone S.p.A., Finanziari Bigotti S.p.A., Gestione Integrata S.r.l. and STI S.p.A.).
The Council of State also upheld the TAR Lazio judgments with regard to Cofely and CSEL, thus confirming that the Decision was manifestly unfounded as far as these undertakings were concerned. It held that the economic and technical offers submitted by Cofely and CSEL were inherently aggressive and overlapped with the bids submitted by the cartelists, confirming in addition that there was no evidence of any kind of a collusive agreement between the two companies and the other participants to the alleged cartel.
Overturning the Decision in relation to 4 applicants
With respect to four further companies (namely, Manital S.c.p.a. and its parent company Manitalidea S.p.A.; and Kuadra S.r.l. and its parent company Esperia S.p.A.), however, the Council of State set aside the TAR judgments and, thus, annulled the Decision. According to the Court, Manital provided reliable alternative justifications for its bidding behavior, supported by evidence. In particular, Manital proved that it was awarded the tender offers based on technical reasons and that its contested conduct was justified by economic continuity (e.g. it submitted offers for lots where it was the outgoing service provider) and turnover limitations (i.e. it could not have submitted more offers). On the other hand, the Council of State stated that the evidence collected by the ICA regarding Kuadra was ambiguous and insufficient to demonstrate its participation in the cartel.
Reduction of the fine imposed on the leniency applicant
Finally, with respect to CNS – which challenged the Decision to grant it a mere 50% reduction in the fine, instead of total immunity – the Council of State ordered the ICA to re-determine the fines originally imposed to take account of the fact that the statements and documents produced by CNS as part of its leniency application constituted the most significant evidence used by the ICA to support its finding of an infringement of Article 101 TFEU.
 Council of State, Judgment Nos. 3570, 3571 and 3572 of May 9, 2022.
 Namely, C.N.S. – Consorzio Nazionale Servizi Società Cooperativa; Consorzio Stabile Energie Locali S.c.a.r.l.; Engie Servizi S.p.A., jointly and severally with its parent company Engie Energy Services International SA; Exitone S.p.A., jointly and severally with the company Gestione Integrata S.r.l. and with its parent companies STI S.p.A. and Finanziaria Bigotti S.p.A.; Kuadra S.r.l., jointly and severally with its parent company Esperia S.p.A.; Manital Società Consortile per i Servizi Integrati per Azioni Consorzio Stabile – Manital S.c.p.a., jointly and severally with its parent company Manitalidea S.p.A.; Rekeep S.p.A.; Romeo Gestioni S.p.A. jointly and severally with its parent company Romeo Partecipazioni S.p.A.
 TAR Lazio, Judgment Nos. 8765, 8767 and 8768 of July 27, 2020 (discussed in the July 2020 issue of this Newsletter: https://www.clearygottlieb.com/-/media/ files/italian-comp-reports/italian-competition-law-newsletter-july-2020.pdf).
 TAR Lazio, Judgment Nos. 8762, 8769-8772, 8774-8779 and 8781 of July 27, 2020 (discussed in the July 2020 issue of this Newsletter: https://www.clearygottlieb. com/-/media/files/italian-comp-reports/italian-competition-law-newsletter-july-2020.pdf).