CN03 - Italian Consiglio di Stato annuls five of its own rulings on bid-rigging
09 March 2022
On 15 February 2022, the Consiglio di Stato ("CdS") annulled five of its own rulings that upheld a decision of the Italian Competition Authority ("ICA") fining several providers of medical oxygen and ventilation equipment for alleged bid-rigging. The annulment followed a revocation action lodged by five of the parties and is a very rare example of a successful revocation action.
Key takeaways
- As a general rule, judgments of the CdS cannot be appealed.
- The revocation procedure is an extraordinary remedy available in limited circumstances, which involves the CdS reviewing its own judgment, for example when blatant errors of fact have been made.
- Whilst revocation appeals in competition cases have previously been rejected, the CdS has recently demonstrated a willingness to review its previous judgments in a case where it evidently failed to consider relevant evidence.
Background to the revocation proceedings
In December 2016 the ICA fined 14 companies active in the market for home oxygen therapy and home mechanical ventilation therapy for alleged bid-rigging.
The TAR Lazio (the court of first instance) upheld the appeals against the ICA's decision, stating that the decision to fine the companies was based on insufficient and/or partial evidence. On appeal, the CdS overturned the rulings of the TAR Lazio concluding that the ICA's decision was supported by sufficient and convincing evidence.
The revocation appeal
Five companies challenged the judgments of the CdS by initiating a 'revocation' procedure.
The purpose of this type of appeal is to allow the CdS to review its own judgment in special circumstances, e.g. when it transpires that the judgment was based on forged evidence or that it conflicts with another judgment involving the same parties that is already final.
Among the possible grounds for a revocation appeal is the existence of a blatant and serious error of fact made by the judge when handling the original appeal, especially when the error derives from the CdS failing to consider evidence at its disposal. In practice, a revocation appeal is lodged before the CdS, but heard by a different chamber of judges from the original appeal.
The judgments
On 15 February 2022, the CdS upheld the revocation appeals brought by Sapio, Vivisol, Medicair, Medigas and Linde Medicale concluding that its initial judgments were vitiated due to the lack of assessment of certain key evidence and/or a clearly erroneous reading of such evidence.
In particular the CdS noted that, when upholding the ICA's assessment that the parties rigged certain public tenders, the CdS had ignored evidence indicating the reasons underlying the parties' choices not to participate in tenders, e.g. evidence that the products requested by the calls for tender were not supplied by certain parties or that a company's costs structure prevented it from participating profitably in the tenders concerned.
When the CdS revokes one of its judgments, the judgment is annulled and the CdS must undertake a fresh review of the merits of the appeal.
It is very rare that the CdS revokes its own judgments. This case is a welcome development and demonstrates the willingness of the CdS to provide practical solutions to the difficulties experienced by the judges when dealing with competition law proceedings due to the complexity of the cases and the difficulty to consider all the relevant evidence provided by the parties.
