In a judgment delivered on November 18, 2022 (the “Judgment”), the Council of State partially upheld an appeal against a judgment of the Regional Administrative Tribunal of Lazio (the “TAR Lazio”) that had confirmed an ICA decision imposing a €2,817,890 fine on a company (MS) for an anticompetitive agreement in the corrugated cardboard packaging market (the “Decision”). The Judgment is the first to be delivered in as many as 25 parallel appeals against the Decision.
Background: the Decision
The ICA’s investigation, which involved over 20 undertakings, arose from a complaint filed in October 2016 by a trade association of non-vertically integrated box manufacturers, concerning alleged anticompetitive agreements in the corrugated cardboard sector. Before and during the formal investigation opened by the ICA in March 2017, four companies submitted leniency applications.
In the Decision, the ICA concluded that the parties’ conduct amounted to two separate, complex and continuous infringements, implemented in two different markets, which were vertically related to each other, namely the (upstream) market for corrugated cardboard sheets and the (downstream) market for corrugated cardboard boxes. The two cartels took place from 2004 and 2005, respectively, to 2017.
The finding of two distinct infringements led the ICA to impose two sets of fines: (i) a total fine of approximately €110 million on the companies that participated in the upstream cartel; and (ii) a total fine of approximately €178 million on the members of the downstream cartel.
The rulings of the TAR Lazio
All the investigated parties (except for the leniency applicant that was granted full immunity from fines) applied to the TAR Lazio for annulment of the Decision. In the rulings on the merits of the applications, however, the TAR Lazio rejected nearly all of them.
In particular, the TAR Lazio confirmed that: (i) the fact that the parties could access the leniency statements only after they received the statement of objections did not breach their rights of defense, as the parties were given approximately 60 days to prepare their written replies; (ii) the fact that a company participated in some but not all aspects of a complex infringement was irrelevant, to the extent that such company was or should have been aware of the other aspects of the infringement in which it did not participate directly; and (iii) the ICA could lawfully establish a company’s participation in an infringement based on either a leniency statement corroborated by documentary evidence, or two converging leniency statements.
The judgment of the Council of State
In the Judgment, the Council of State partially upheld the appeal of MS against the TAR Lazio ruling concerning it, in relation to the imposition of the fine.
In particular, the Council of State agreed with almost all conclusions reached by the TAR Lazio, finding that MS was aware of the infringement and did not seriously dissociate from it. Therefore, MS’s liability for the infringement could not be questioned.
However, the Council of State found that the ICA and the TAR Lazio had failed to give due consideration to the fact that MS’s participation in the alleged infringement consisted only in attending two of the different meetings among competitors found by the ICA. In other words, in terms of duration and intensity, MS’s participation in the alleged anticompetitive conduct lasted little more than a year, against an overall duration of the cartel of about 12 years. Therefore, MS only played a marginal role in the infringement.
Based on the above, the Council of State held that the fine imposed on MS had to be reduced by 20%.
 Council of State, Judgment No. 10159 of November 18, 2022.
 ICA Decision No. 27849 of July 17, 2019, I805 – Prezzi del cartone ondulato (the Decision is discussed in the July 2019 issue of this Newsletter: https://www. clearygottlieb.com/-/media/files/italian-comp-reports/italiancompetitionlawnewsletterjuly2019pd-pdf.pdf).
 TAR Lazio, Judgments Nos. 6040, 6044, 6047-6055, 6072-6076, 6078-6080, 6082-6085, 6087 and 6090 of May 24, 2021. Only four applicants were acquitted by the TAR Lazio. These companies were found by the ICA to have participated in only one of the two cartels and, in any event, for a very short period. The TAR Lazio concluded that, all things considered, the evidence against these four companies was mainly circumstantial and, in any case, was not objective, precise and consistent enough to establish an infringement of Article 101 TFEU (the judgements are discussed in the May 2021 issue of this Newsletter: https://www. clearygottlieb.com/-/media/files/italian-comp-reports/italian-competition-law-newsletter–may-2021-pdf.pdf).