Competition, Agreements and abuses, Parental liability concept, antitrust control, intercompany transactions, Competition and Market Authority, Provision no. 27016 of 31 January 2018

THE COMPETENT AUTHORITY OF COMPETITION AND MARKET

IN ITS ADMINISTRATION of January 31, 2018; HEARD the Rapporteur; GIVEN the law of 10 October 1990, n. 287;

CONSIDERING its resolution of 22 October 2014 with which the Guidelines were adopted on the methods for applying the quantification criteria for administrative pecuniary sanctions imposed by the Authority pursuant to Article 15, paragraph 1, of Law no. 287/90 (hereinafter referred to as “Guidelines”);

IN VIEW of its provision n. 26064 of 8 June 2016, adopted at the end of the procedure n. I / 783 – Agreement between operators in the Vending sector, with which the Authority has ascertained that the conduct implemented by … …… and its subsidiaries …… SpA, ….. ….. Srl And … ..S.r.l. (all belonging to the group ……); …. S.p.A. .; S.p.A. .; S.p.A. .; … ……; ….. S.p.A. and …… (… ……..), consisting of the coordination of commercial policies aimed at limiting the competitive comparison between the parties parties on prices, territorial areas of operation and their respective customers in the Italian services market relating to the management of …….., constituted an agreement restricting competition in violation of Article 101 of the TFEU, sanctioning the aforementioned companies;

CONSIDERING that for the violation ascertained, due to the gravity and duration of the infringement, it has been ordered by the company … S.p.A. the imposition of a pecuniary administrative sanction amounting to …. euro;

HAVING REGARD TO the ruling by the Regional Administrative Court for Lazio (hereafter “Tar Lazio”) of 28 July 2017 n. 9062 with which the appeal lodged by the …….. and, for the effect, the provision n. 26064 of 8 June 2016 in the only part of determining the fine;

VISTA, in particular, the reasoning of the aforementioned sentence, with which the Lazio TAR, in partial acceptance of the appeal presented and “recalling its jurisdiction with full knowledge of merit – which allows, pursuant to Article 134, paragraph 1, letter c ), cpa to the administrative judge to change, based on its own assessment, the measure of the pecuniary sanctions imposed by the AGCM “, set the parameters for the concrete determination of the penalty to be imposed on the applicant, deferring the acts to the Authority so that the same proceeds to the recalculation of the same sanction conforming to the indications given in the related sentence;

HAVING REGARD to the parameter for the recalculation of the amount of the pecuniary sanction imposed, identified by the administrative judge in the motive part of the ruling referred to above, where the same “deems to refer the deeds to the Authority so that the same quantifies, in concrete, the amount of the same sanction conforming to the indications of the present judgment, that is to say, considering the basis of calculation for the application of the penalty the sum of the invoices of the sole companies …… and …. Srl “;

IN VIEW of its provision n. 26752 of 20 September 2017, with which the Authority initiated a procedure for the recalculation of the fine to be imposed on the company …. S.p.A., in contradictory with the aforementioned company, pursuant to the sentence of the Lazio Regional Administrative Court no. 9062 of 28 July 2017;

HAVING REGARD to the letter dated 22 December 2017 with which the company was informed ….. S.p.A. the infra-procedural term for closing the preliminary phase;

GIVEN the memory of ….. of 11 January 2018; SEEN all the proceedings of the proceeding; CONSIDERED the following:

I. THE PARTY

1 ………. S.p.A. (hereafter, …..) is a company active in Italy in the vending sector both in management and in resale. In particular, ….., at the time of the disputed infringement, it operated in the management, either directly or through …. S.r.l. (of which it held 51% of the share capital), …. S.r.l. (of which it held 51% of the share capital), ….. S.r.l. (concessionaire of the brand …, of which it held 100%), ….. S.r.l. (of which he held 80%).

The total turnover achieved worldwide since ….., in 2015, is equal to 63,820,959 euros. 1 [Data on the consolidated financial statements at 31/12/2015 of … ..]

II. THE PREVIOUS DECISION OF THE AUTHORITY

2. With its own resolution no. 26064, adopted in the meeting of June 8, 2016 (hereinafter also the sanctioning provision), the Authority ascertained that ……….; ….. S.p.A. and its subsidiaries … S.p.A., … .S.r.l., …. S.r.l., …. S.r.l. And … S.r.l. (all belonging to the group …..); …. S.p.A .; Group ….. S.p.A., …. S.p.A., … S.p.A., …. S.r.l .; … .S.r.l.; ….. and …. they had entered into an agreement restrictive of competition pursuant to Article 101 of the Treaty on the Functioning of the European Union, consisting of the coordination of commercial policies aimed at limiting the competitive confrontation between the companies parties on prices, territorial areas of operation and respective customers in the Italian market of services related to the management of distributors …… (hereinafter, the provision).

3. With the provision, the Authority imposed pecuniary sanctions against all the parties involved in the proceeding; the penalty irrigated at …. S.p.A. it was equal to … euro.

4. For the purposes of quantification of the sanction, the criteria and methods of calculation referred to in the Guidelines have been adopted. The Authority then proceeded to quantify the basic amount of the fine, defined as a percentage of 20% of the value of sales made in the relevant market by the company Part of the proceeding both directly and through subsidiaries (hereinafter, specific turnover) ) and of the duration of the infringement. The specific turnover was quantified, in application of the concept of an undertaking in the antitrust sense, as the sole economic entity, regardless of whether the subsidiaries of the Party had or not taken part in the infringement (page 7 and following of the Guidelines).

III. THE PREVIOUS DECISION OF THE AUTHORITY

2. With its own resolution no. 26064, adopted in the meeting of June 8, 2016 (hereinafter also the sanctioning provision), the Authority ascertained that ……….; ….. S.p.A. and its subsidiaries … S.p.A., … .S.r.l., …. S.r.l., …. S.r.l. And … S.r.l. (all belonging to the group …..); …. S.p.A .; Group ….. S.p.A., …. S.p.A., … S.p.A., …. S.r.l .; … .S.r.l .; The principle of compliance with the European Union is based on the principle of compliance with the European Union. parties on prices, territorial areas of operation and customers in the Italian market of services related to the management of distributors … (hereinafter, the provision).

3. With the provision, the Authority imposes pecuniary sanctions against all parties involved in the proceeding; the penalty irrigated at …. S.p.A. it was equal to … euro.

4. For the purposes of quantification of the sanction, the criteria and methods of calculation referred to in the Guidelines have been adopted. The Authority then proceeds to quantify the basic amount of the market, as a percentage of 20% of the sales value made in the relevant market by the company of the duration of the infringement. The specific turnover was quantified, as an example of the concept of an undertaking in the antitrust sense, as well as in the infringement (page 7 and following of the Guidelines) .

10. The Lazio TAR, referring to the concept of parental liability, has, in particular, considered that the Authority erroneously considered, for the purposes of calculating the penalty, also the turnover achieved by the companies ….. Srl, … .. Srl, …… Srl E … Srl, without verifying the effective presence of an antitrust control of … on these companies (also taking into account the non-totality participation of ….. in these companies) and without identifying revealing indices of heterodetermination of their behavior.

According to the judge the presumptive imputability “of the conduct would be possible only for the company …., as it is wholly owned.

11. The Lazio TAR, recalling its jurisdiction with extensive knowledge of merit, has therefore deferred the acts to the Authority so that the same, quantify, in practice, the amount of the penalty complying with the instructions set out in the sentence, ie considering “as a basis of calculation for the application of the penalty the sum of the invoices of the sole companies ….. and …. Srl “.

IV. INSTRUCTURAL ACTIVITY

12. With provision n. 26752 of 20 September 2017, with which the Authority initiated a procedure for the recalculation of the penalty to be imposed on the company ….., in contradiction with the aforementioned company, pursuant to the sentence of the Lazio Regional Administrative Court no. 9062.

13. In the course of the procedure …. he had the opportunity to exercise his right of defense, having been heard at the hearing on 20 November 2017 and filing a memorandum dated 11 January 2018.

V. THE ARGUMENTS OF THE PART

14 …… has highlighted that the Lazio TAR would have ordered the recalculation of the fine imposed on the company, providing that the “calculation basis for the application of the penalty” should be “the sum of the turnover of the companies … …. and …. Srl “net of intercompany transactions, and not the consolidated figure.

15. According to the company, the passages of the motivation of the sentence of Tal Lazio dedicated to the 11th ground of appeal proposed by ….. assume that it would have unequivocally excluded the possibility of using the consolidated financial statements as a basis for calculation for determining the penalty to be imposed on …, “without analyzing whether, and to what extent, the companies attracted to the consolidation area are effectively subject to antitrust control” by … or without identifying “Survey indicators of the alleged coordination with the effect of heterodetermination of the other companies of the group”.

On this basis, according to …, the Lazio TAR would have excluded the turnover of the various companies attracted to the consolidation area of ​​… – with the sole exception of ….. S.r.l. – can be considered for the determination of the sanction against ……

16. In the opinion of ….., the words of the Lazio TAR would imply that, since these companies do not belong to “the same company in the antitrust sense”, their turnover can not be included in the total turnover of the company. in Article 15, paragraph 1, Law n. 287/90, taken as the basis of calculation for the edict limit.

In this regard, it is significant that the TAR, in support of this conclusion, would also value the fact that the Authority “did not involve [other] companies in the proceeding”. This reference, although not particularly developed in the ruling, would also be a consequence of the acceptance of the eleventh plea of ​​appeal of …, which pointed out that such lack of involvement had led to an infringement of the right of defense not only of the other companies attracted to the consolidation area of ​​…., but also, and above all, of ….., called to respond to the conduct of others and to support a sanction in part attributable to different companies, having different social structure.

17. On the basis of the aforementioned arguments, … believes that there are no doubts as to the manner in which the sanction can be recalculated in compliance with the Judgment n. 9062 and that the edittal limit should be identified by the sum of the turnover of the sole companies …. and … S.r.l. (net of intragroup transactions).

So having identified the maximum edictal, … .. believes therefore that the final sanction must then be determined in the same manner as in provision n. 26064 of 8 June 2016, and then applying a reduction of 5% compared to the maximum edict (Article 34 of the Guidelines).

18. Furthermore, …. believes that if the restatement of the sanction by the Authority resolves in the confirmation of the amount originally imposed, the obvious need to give a useful effect of the sentence would be ignored.

VI. ASSESSMENTS

19. The Lazio TAR, with sentence no. 9062/2017, recalling its jurisdiction with an extensive knowledge of merit, has decided to accept the censorship of ….., with regard to the turnover to be used as the basis for calculating the fine and to send back to the Authority the task of carrying out, in practice, the recalculation of the amount of the fine, in accordance with the instructions set out in the sentence.

20. Contrary to the arguments of the Party, the parameters identified by the Lazio TAR are punctual and leave no margin of discretion in the implementation of the conformation constraint deriving from the sentence to be executed, which requires to consider “as a basis for calculating the application of the fine the sum of the invoices of the sole companies ….. and … Srl “. The basis for calculating the fine can in fact only be identified in the specific turnover from which, according to the Guidelines, the fine is calculated.

21. The Lazio TAR, in point 8.10 of the sentence in which it motivates the partial acceptance of the appeal of …, does not, however, make any reference to the limit of the edict referred to in Article 15 of the law n. 287/90. The application of the maximum threshold of 10% of the total turnover of the company is, in fact, assessed by the judge in paragraph 8.1 of the sentence, where the same notes that “the” maximum ceiling “of 10% of turnover is fixed by law (article 15 ln 287/90) and the Authority limited itself to applying it “. Moreover, it is noted that the interpretation proposed by ….. – besides not being reflected in the text of the sentence in question – would conflict with the criteria set out in the Guidelines and with the jurisprudence, both Community and national, according to which the maximum legal threshold of 10% must be calculated on the basis of the turnover of the entire corporate group 2.

22. As regards the fact that the restatement of the sanction must necessarily have a “useful effect” and lead to an amount different from that originally applied, it is noted that the Council of State, by partial ruling no. 3944/2015, expressed itself in favor of the possibility that, after a restatement, the sanction can legitimately remain unchanged 3.

23. In the following, we proceed, in compliance with the aforementioned sentence of the TAR Lazio, to the concrete restatement of the sanction imposed by the provision n. 26064 of 8 June 2016 against …..

2 [Cfr. EU Court, 13 September 2010, Trioplast Wittenheim v Commission, case T-26/06 (p.115) and sent. CdS n. 2199/2002.]

3 [Cfr. sent. CdS n. 3944/2015, point 14. “The first controversial question consists in determining whether the reduction of the sentence deriving from the elimination of the organizational aggravating factor must take place starting from the basic amount or the final sanction. The Board deems the first solution to be preferable: the aggravating factor must be deducted from the basic amount, with the consequence that the final amount of the fine may remain the same “. The Authority had appealed to the Council of State to obtain the reform of the sentiment. of the Lazio Tar n. 3724/2013, which with the aforementioned partial ruling had raised a preliminary question to the EU Court of Justice. The Court then declared its incompetence and the Council of State, having acknowledged the renunciations of the Authority and the interested Party, declared the extinction of the judgment with a sentence published on January 16, 2017.]

24. In accordance with the instructions of the administrative court, the value of the sales of the goods or services object of the infringement used as a basis for calculating the penalty must therefore be identified only in the specific turnover of the companies …. S.p.A. and … S.r.l. respectively equal to [10-50 million] * and [1-10 million] euros. In consideration of the foregoing, and maintaining the other calculation parameters unchanged, a penalty of [50-100 million] euro is obtained. Since the sanction thus determined exceeds the maximum limit provided for in article 15, paragraph 1, of l. n. 287/90, the same is reduced within this limit (to an amount of 6,382,096 euros). The reduction in application of point 34 of the Guidelines, recognized by the Authority in the provision n. 26064 of 8 June 2016 and quantified, in the case of … S.p.A., in the amount of 5% of the penalty calculated up to now.

25. In application of the aforementioned quantification parameters defined by the Lazio Regional Administrative Court ruling of 28 July 2017 n. 9062 the final amount of the fine to be applied to … S.p.A. for the conduct established with the provision n. 26064 of 8 June 2016 is equal to ……. euros.

All this premised and considered;

CONSIDERED, therefore, that in order to comply with the aforementioned sentence of the TAR of Lazio, it is necessary to recalculate the penalty to be applied to … .S.p.A. for the violation established in the amount of …… euros ……;

CONSIDERED that the aforementioned restatement of the sanction does not constitute acquiescence and, therefore, is not prejudicial to any determination by the Authority following the appeal against the aforementioned sentence of the Lazio Regional Administrative Court no. 9062/2017, including the request for payment of a higher sum due, if any, due to sanctions and surcharges;

RESOLUTION

that the pecuniary administrative sanction to be applied to the company … S.p.A. for the behavior attributed to the same ascribed in the Authority’s provision n. 26064 of 8 June 2016, is quantified in the amount of  ……….euros.

An appeal to the TAR of Lazio pursuant to Article 135, paragraph 1, letter b) of the Administrative Process Code (Legislative Decree 2 July 2010, No. 104) may be filed against this provision within sixty days from the date notification of the provision itself, without prejudice to the longer terms referred to in Article 41, paragraph 5, of the Code of the administrative process, or an extraordinary appeal may be proposed to the President of the Republic, pursuant to article 8 of the Presidential Decree 24 November 1971, n. 1199, within one hundred and twenty days from the date of notification of the provision itself.

THE SECRETARY GENERAL THE PRESIDENT

Source of the Competition and Market Guarantor Authority