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i Significant casesICA imposes largest ever fine on captive banks and their trade associations

On 20 December 2018, the ICA imposed its largest ever overall fine in a cartel case (over €678 million) on captive banks belonging to automotive groups. The ICA found that the captive banks had exchanged sensitive information – directly among themselves and through trade associations – including about interest rates, sales volumes, costs, etc.

The parties argued that captive banks are not in competition with each other in the market for consumer credit or lease contracts for cars, because they exclusively serve their own brand. The ICA, however, rebutted that financing by captive banks affects competition between car manufacturers in the sale of vehicles. In fact, the ICA held that the relevant product market is the sale of cars financed by captive banks.

The ICA imputed the infringement also to the captive banks' parent companies, based on the parental liability doctrine. The ICA held liable not only parent companies holding 100 per cent (or almost all of the shares) of their subsidiary, but, for the first time, it also held jointly controlling parents of a joint venture liable. In the latter case, however, the ICA did not impose on them joint and several liability for the joint venture's fine, due to the novelty of its approach.

Although the ICA concluded that the infringement was particularly serious, it found that the application of a correspondingly high gravity multiplier would result in excessive fines, also in light of the financial crisis affecting the automotive industry during the period of the infringement. The gravity multiplier was therefore reduced to only 4 per cent.

Council of State quashes TAR judgment on exchange of information about television post-production services

In 2015, the ICA found that 21 companies and their trade association had been exchanging sensitive information and coordinating prices in the tenders for post-production services provided to the national TV broadcaster RAI. The decision was quashed by the TAR. On 21 March 2018, the Council of State overruled that judgment and confirmed the ICA's findings.

Following previous case law, the Council of State criticised the TAR for indulging in piecemeal analysis of the evidence, instead of weighing it as a whole. In the absence of plausible alternative explanations, the Council of State found that the price increases' unusual timing and magnitude was sufficient proof of collusive conduct.

According to the Council of State, the trade association contributed to disseminating sensitive information and even the exchange of historic data, which each company could autonomously gather, might infringe antitrust rules.

ii Trends, developments and strategiesCouncil of State and TAR clarify criteria for antitrust fines in cartel cases

In 2018, the case law on the quantification of antitrust fines was enriched by a new string of precedents.

In a case concerning a cartel between model management agencies, the TAR clarified the notion of relevant turnover for fining purposes. Payments made to agencies and passed on to models do not accrue to the agencies, because these transactions are financially neutral. Therefore, these amounts should not be included in the agencies' value of sales for the purpose of calculating the base amount of the fine.

In a case concerning a cartel in the cement industry, the Council of State confirmed that the 10 per cent maximum threshold for fines applies to the company's turnover in the last entire financial year prior to the final decision. This principle applies even if this turnover is much lower than in the previous year due to the divestment of certain entities of the group.

Finally, the Council of State confirmed that, for serious infringements, a fine equal to 15 per cent of the cartelised products' annual sales can apply. If a company only supplies cartelised products (so-called mono-product companies), that multiplier will always result in a fine exceeding the 10 per cent maximum threshold of that company's overall turnover – and will have to be reduced accordingly. However, according to the Council of State, this inevitable application of the maximum possible fine to mono-product companies does not in itself imply an unfair discrimination towards those companies.

TAR clarifies the scope of right of access to the ICA's internal documents in cartel cases

In a judgment of 5 November 2018, the TAR provided guidance on the scope of the ICA's duty to disclose documents in the context of antitrust investigations.

According to the TAR, the ICA may delay third-party access to documents attached to a complaint until it has assessed whether they have any relevance with respect to the proceedings (and, in any event, no later than the adoption of a statement of objections). This assessment is necessary to strike the right balance between the complainant's right to confidentiality and the investigated party's defence rights.

The TAR also annulled the ICA's refusal to disclose an internal communication on organisational matters between the case team and the college of the ICA. This document cannot be classified as a preliminary draft or report relating to the content of an act to be adopted by the ICA, which are explicitly exempted from disclosure under applicable legislation.

Importantly, the TAR affirmed that in principle the ICA cannot deny disclosure arguing that a given document is not relevant to the party's defence: the assessment of the relevance of a document for the purpose of defence is an exclusive prerogative of the party requesting disclosure.

iii Outlook

In the coming months, the ICA will continue to focus its enforcement efforts on public tenders, particularly for integrated management of health and safety conditions on workplaces and private security. The ICA also launched an investigation into an alleged coordination among the main telecommunications operators on retail mobile and fixed telecommunications services.

Moreover, the Council of State is expected to adopt a final judgment on the alleged collusion between Roche and Novartis. The two pharmaceutical companies are accused of favouring the commercialisation of the drug Lucentis – sold by Novartis under Roche's licence – to the detriment of the cheaper drug Avastin. The Court of Justice of the European Union issued a preliminary ruling on the same case on 23 January 2018, clarifying that an agreement on the dissemination of misleading information with a view to reducing the competitive pressure of a pharmaceutical product might amount to an infringement 'by object' of Article 101 TFEU.