The Italian Supreme Administrative Court (Consiglio di  Stato) is seeking guidance from the European Court of  Justice on how to deal with applications for the leniency  program when they are made both to the European  Commission and national competition authorities.  The core question is to assess how an application made to  the European Commission affects a related “simplified”  application in Italy.

The case hinges on a 2011 decision by the Italian  competition authority (the AGCM) to fine 19 road freight  companies a total of €77 million for running a cartel.  The AGCM made this ruling at the conclusion of an  investigation into more than five years of price fixing  from 2002 to 2007. The cartel members were Agility,  Albini & Pitigliani, Alpi Padana, Brigl, Cargo Nord,  Dhl Global Forwarding, Dhl Express, Francesco Parisi,  Gefco, Geodis Wilson, I-Dika, Italmondo, Italsempione,  Itk Zardini, ITX Cargo, Rhenus, Saima, Schenker,  Sittam, Spedipra, Villanova and Armando Vidale, with  Fedespedi (the sector federation) participating in an active  organizational role. Antitrust sanctioning powers were  also prescribed for Alpi Padana and Spedipra.

Schenker avoided fines by applying for clemency  and helping to identify the other cartel members.  Schenker was granted immunity because of the critical contributions it made to identifying the other cartel  members and fine-tuning the inspections. Agility, Dhl  Global Forwarding, Dhl Express and Sittam confirmed  and reinforced the evidential framework provided by  Schenker. In light of this, the AGCM reduced their fines  by 50 percent, 49 percent, 49 percent and 10 percent,  respectively. 

Although DHL won immunity from the EU Commission,  it found itself behind DB Schenker at the end of the  investigation before the AGCM. Indeed, according  to the AGCM, the EU leniency application of DHL  did not specifically cover international shipping. As a  consequence, DHL challenged the AGCM’s decision  before the Italian Administrative Court of first instance  (the Tribunale Amministrativo Regionale del Lazio),  arguing that the AGCM was wrong to place it behind  Schenker and Agility, since it overlooked the link  between the simplified leniency application in Italy  and the leniency application already made to the  EU Commission.

The TAR Lazio rejected DHL’s appeal (decision  No. 3034/2012), highlighting that the law is not  concerned with the relationships between a leniency  application before the EU Commission and one  before the AGCM. According to the TAR Lazio, no  “necessary presupposition” exists between the above  said applications.

The Consiglio di Stato, as court of last instance, then  decided to refer the case to the ECJ in order to obtain  the proper interpretation of the relationships between  leniency applications submitted both at the European  Union level and the national level.