With two judgments of 18th December, the Italian Administrative Court (hereinafter the “IAC”) upheld the appeals brought by two Italian insurance companies (the “Companies”) against the decision of the Italian Competition Authority (“ICA”), ascertaining the existence of a cartel among them aimed at influencing tenders made by local public transport companies.
The appellants had challenged this decision claiming that the ICA had erred in reversing the burden of proof of the alleged anti-competitive conduct, requiring the Companies to provide an alternative explanation of the conduct even in the absence of evidence proving the existence of the alleged abusive coordination.
The IAC agreed with the Companies and overturned the decision of the ICA, alleging that the documentary evidence used by the latter were unsuitable to prove the sharing of sensitive information from a competition point of view and that the reasoning of the ICA was not corresponding to the factual findings.
In particular, the IAC pointed out the following shortcomings of the ICA:
- The absence of important documentation.
- The presence of more than one apodictic statement.
- The recourse to the presumption in the absence of serious evidence.
- The absence of appreciation of the notorious economic difficulties of the sector involved.
- The negligible market share of the parties.
In light of the above, the IAC argued that the alleged anti-competitive conduct cannot be considered as the only plausible explanation of the Companies’ behaviour, even in terms of a concerted practice, since the relative conduct could have been deemed just as unilateral decisions of the Companies in response to economic inputs of the sector involved.
These IAC judgements continue a trend that shows the close scrutiny that the IAC has over the ICA. Therefore businesses who have been the subject of recent adverse decisions by the ICA should consider obtaining legal advice on the possibility of appealing these cases.