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.