The authority called “Consiglio di Stato” reaffirms the legitimacy of the sanctions imposed by AGCM on the companies participating in the cartels in the cardboard and corrugated packaging sector 26 January 2023 – Posted in: News – Tags: , , , , ,

By the lawayers Mr. Augusto Vacca and Mrs. Silvia Sulli

The autority called “Consiglio di Stato” is dealing with the numerous appeals filed against the judgments of the Lazio Regional Administrative Court (TAR Lazio) that confirmed the legitimacy of the heavy penalties imposed in 2019 by the Italian Competition Authority (AGCM) on companies believed to have participated in the corrugated cardboard cartel or the corrugated cardboard packaging cartel.

Some of these appeals were decided by a series of sentences with a similar operative part, the last of which in order of time is No. 691/2023 published by the Consiglio di Stato on 20 of January 2023, which since November 2022 have reaffirmed the fairness of the decisions taken at first instance by the Lazio Regional Administrative Court, simply ordering a partial remodelling of the quantum of the penalties.

The remaining appeals are now at the decision-making stage and, barring any surprises dictated by the peculiarities of the individual cases, should lead to further decisions that, in all likelihood, will follow in the footsteps of the judges of Consiglio di Stato.

The matter in dispute originates from an investigation carried out by the AGCM starting in 2017 and concluded in 2019 with the imposition of multiple fines for a total amount of EUR 287 million against companies involved in free market distorting cartels.

In fact, the AGCM, with measure prot. no. 27849 of 6 August 2019, found that several companies operating in Italy, belonging to the product sector of the production and distribution of corrugated cardboard, between 2004 and 2017, had implemented two separate horizontal competition-restricting agreements pursuant to Article 101(1) of the TFEU (Treaty on the Functioning of the European Union).

According to the investigation carried out by the AGCM, these cartels were set up in order to distort normal competition in the similar markets for corrugated sheet and corrugated packaging through the concerted fixing of sales prices and the planned practice of production stoppages.

The progressive becoming final of the Consiglio di Stato’s judgments opens the way for the subsequent so-called ‘follow-on’ phase, i.e. the possible filing before the civil courts of actions for damages by the players harmed by the two cartels.

Compensation may concern the damages suffered by the customers of the fined companies as a result of the anti-competitive conduct that has been ascertained, such as, for example, the higher cost incurred for the purchase of the sheets and packaging compared to the lower cost that would otherwise have been found in the free market.

The rightful claimants for damages include, first and foremost, the economic operators who, in the years covered by the AGCM’s investigation, purchased corrugated board material from one or more cartel companies in order to use it in their respective production and distribution processes.