testata inforMARE

19 May 2022 The on-line newspaper devoted to the world of transports 17:18 GMT+2



May 08, 2014

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Original news
The REGIONAL ADMINISTRATIVE COURT Latium establishes that GNV, Moby, Marinvest and SNAV have not agreed increases of rates

The Authority Antitrust had comminato fines for beyond eight million euro to the four societies

Yesterday the Regional administrative court for the Latium, with sentences that we below publish, has received the resources introduced from the Large societies Navi Veloci (GNV), Moby, Marinvest and SNAV for the cancellation of the provision with which a year it makes the Guarantor Authority of the Competition and Market (AGCM) had comminato to the four companies fines for beyond eight million euro for allegated violation of article 101 of the Treaty on the Operation of the European Union, that he among other things prohibits the agreements between enterprises that can prejudice the commerce between the Countries EU or prevent, shrink or forge the competition, as - second the Antitrust - the four societies would have been come to an agreement in order to introduce increases of the prices of the fleeting services of marine transport with the Sardinia ( on 14 June 2013). In the sentences the REGIONAL ADMINISTRATIVE COURT for the Latium has specified that "elements are not offered which confirm the agreed existence of the practical one".




N. 04731/2014 REG.PROV.COLL.
N. 06319/2013 REG.RIC.

ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for Lazio
(Section Before)

it has pronounced anticipates

SENTENCE

In the judgment introduced with resource 6319/13, proposed by Moby S.p.A., in person of the legal representative pro tempore, assisted and defended from the avv. you Caravita of Toritto, Carnevale and Tesauro, with address which elected near the study of first in Rome, via of Door Pinciana 6;

against

The guarantor Authority of the competition and the market - Antitrust, in person of the legal representative pro tempore, assisted and defended from the general Legal profession of the State, domiciliataria for law;

regarding

Forship S.p.A., in person of the legal representative pro tempore, assisted and defended from the avv. you Tavella and Fabrizi, with address which elected near the study of the second in Rome, via Ludovisi 16; the National Union Consumers, in person of the legal representative pro tempore, not constituted in judgment;

and with the participation of

to opponendum:
the Sardinia Region, in person of the president pro tempore, assisted and defended from the avv. you Ledda, Sau, Bellitti and Roberti, with address which elected near the study of this last one, in Rome, Trajan hole 1/A;
Independent association Altroconsumo consumers, in person of the legal representative pro tempore, assisted and defended from the avv. you Rind, Martinello and Afferni, with address which elected near the study of first, in Rome, via of Barbers 6;

for the cancellation

of the provision of the Guarantor Authority of the Competition and the Market, published in 14 date june 2013 on the website, and notified to Moby S.p.A in pairs given, relative to the conclusion of the I743 procedure - Rates Ferries da/per the Sardinia, bringing the sentence regarding the foretold Society to the payment of an endorsement pairs to € 5.462.310 for allegated violation of art. the 101 of the TFUE.

Seen the resource and relative the attached ones;
Seen the certificates of incorporation di in judgment of the guarantor Authority of the competition and the market, of Forship S.p.A., the Sardinia Region, and Altroconsumo;
Seen the defensive memories;
Visas all the actions of the cause;
Reporter in the public audience of the day 29 January 2014 the cons. avv. To. Gabbricci and hearings for the parts the defenders as specified in the minutes;
Considered and considered in fact and right how much follows.

FACT

To. Concluded a procedure, bringing the n. I743, started in May 2011, the guarantor Authority of the competition and the market - Antitrust has established that, in violation of art. the 101 of the Treaty on the operation of European Union (T.F.U.E.), the societies of Moby navigation, Great Navi Veloci (G.N.V.), S.N.A.V and Marinvest, according to agreements between they elapsed and by means of a parallelism of conducts, in summery season 2011 had increased in average of 65% the prices of the marine transport of line for passengers in the connections from and for the Sardinia, on the drafts Civitavecchia-Olbia/Golfo Aranci, Genoa-Olbia, Livorno-Olbia/Gulf Aranci and Genoa/I go Torres From Liguria-Port.

B. the conclusive provision, notified beginning from on June 14, 2013, brings the sentence of each of the four societies to the payment of pecuniary endorsements determined in various amounts and pairs to € 5.462.310 for Moby, to € 2.370.795 for G.N.V., € 231,765 for SNAV and € 42,575 for Marinvest; contextually a fifth company of navigation is excluded that, Forship S.p.A. (broken Livorno-Olbia) was part of the understanding, also having also it increased own rates for that year.

Adverse C. the provision in question Moby has proposed the resource in epigraph, censuring it under multiple profiles.

One has been formed is the Authority is the Forship; moreover the Sardinia Region and the Altroconsumo association are taken part in cause to opponendum.

STRAIGHT

1.1. In order to characterize main thema the decidendum of the controversy it convene to proceed from according to resource reason (the violation of the articles. 101 TFUE and 2 of the l. 287/90; insussistenza of the foundations for the configuration of practical agreed; erroneous organization of the fattispecie and defect of motivation).

1.2. The recurrent Moby S.p.a reminds as, in support of the allegated restrictive understanding of the competition, the provision asserts the subsistence of a "parallelism of conducts, in summery season 2011, by Moby, GNV and SNAV, which have all junior clerk increase meaningful of the prices, generally advanced to 65%": the contemporary increase of the prices would express the will, for those enterprises, to concert the market strategies.

1.3. For true, the Authority admits that, being the elevated level of differentiation of the produced ones, is not ravvisabile on the market an only level of price for every operator, neither the rates altogether practiced by the interested companies are anticipated homogenous.

However, Moby continuation, rather than "to analyze the single models of business" and to verify the rationality of the operated choices, the A.G.C.M has founded own analysis on the unitary medium revenues for passenger, having considered such value a "proxy of the practiced unitary average price from the enterprises": a variable proxy is a "statistical indicator who directly describes the behavior of a determined not observable economic aggregate".

1.4. Moreover, second the recurrent one, the final provision does not consider:

- the rates effectively practiced by the various companies on the single routes in the various interested seasons;

- the commercial offers (advertising and) from the same ones not operated and of the consequent differentiation of the produced ones;

- the technical-economic operations by means of which the Authority is reached to the elaboration of such data.

For true, to warning of Moby, the absence of such elements, suitable to clarify the reasons of the appealled provision, would have to lead to the cancellation of the provision appealled for violation of the basic concerning principles the obligatory nature of the motivation.

1.5.1. In any case, the used method in order to assess parallelism of the prices would be erroneous, as the Authority has proceeds not already the economic indication comparing the data (which rates, single offers, voices of cost, segmentation of the question), but using the parameter of the unitary medium revenue.

This last one, in fact, second the recurrent one, would be "inidoneo to represent the structure of the tariff plans" and inadequate "to satisfy the demanded probative standard from art. the 2 of L. 287/90", against the found pluralità of producing and offered services. It is thought to the case of a reduction of the diurnal offer, by definition less expensive than that night, for which the average price it would increase, without modification of the rates; that is to that of increase of the prices for the couples, and contextual decrease of the prices for the nucleus families (two adults, two children and an car): if, afterwards, the service were acquired by more families and less couples, the average price would turn out diminished, although the increase for the couples.

1.5.2. In its turn, the tariff rate of increase is estimated in beyond 65% without a sufficient motivation; moreover, contrarily to how much deducted one in the appealled provision, varied it “from company to company inside a scissor comprised between 50% and 150%”, and would constitute the consequence of the normal competitive mechanisms

1.5.3. About this second point, the importances preliminarys investigation would evidence the absence of homogeneity and the consequent variability of the practiced tariff increases from the companies of marine transport in the interest period, yes to exclude a practical concertativa.

For example, the recurrent one continues, confronting the rates practiced in 2011 and 2010 from it and GNV “it emerges that these pile, respective, to 110-120 Euro and 80-90 Euro on the Genoa-Olbia route and to 90-100 Euro against 80-90 Euro on the route Torres Genoa-Port”: and “a differential of price between companies that oscillates between about 33% and 1 ' 11%, in one to the different entity of the practiced increases”, it would constitute “the tried test of the autonomy of the parts and prevents to ravvisare a agreed economic indication of the practical one”.

1.6.1. The Authority, always in order to demonstrate the pre-emptive agreement, finds incongruity between the increase of the revenues totals of the active enterprises against the decrease of the passengers recorded in 2011: but the increase of the revenues, also against a decrease of the traffic of passengers, would be “the natural glare of politics of increment of the rates”.

1.6.2. The total one held of the quotas in value, with the negative variation of those in volume, would confirm the precedence observations: the operated tariff increments by Moby did not intend to increase of the position on the market, neither to formalize a pact not competition with the other companies, but “to guarantee the business continuity” and “only to face the context of economic crisis that has invested the section of the marine transport”.

1.6.3. The increase of the rates, with consequent the spontaneous and physiological adaptation by the competitor would have been “a right one chosen of stiff management to guarantee the reorganization and the business continuity (art. 2423 second c.c.)”, arresting the impact negative on the accounts, than the repeated increases of the cost of the fuel they would have produced on the budgets beginning from 2008.

1.7.1. In any case, it continues the Moby, also assuming the existence of a parallelism of the conducts, this would not be anomalous, in consideration of the structural characteristics of the markets of reference and the mechanisms of operation of the field of the marine transport.

1.7.2. Currently this is characterized by an elevated degree of transparency, such to allow the mutual acquaintance of the main factors of cost and the practiced prices; little subjects operate you, all in suffering situation financial institution and that they offer homogenous services in regime of substantial oligopoly.

1.7.3. So, also without a pre-emptive agreement, when a competitor increases its rates, the others react increasing they turn the practiced prices, in order to adapt own structure of the revenues to that of the costs, aware that an aggressive competition would immediately prime an analogous reaction of the rivals who would depress the profits, without necessarily to offer the opportunity to increase own market share.

1.7.4. So, a parallelism of the conducts can be considered as I only yield of an anti-competitive understanding in case the conduct cannot be explained alternatively parallel as I yield reasonable of the entrepreneurial initiatives.

2.1.1. The third reason of resource is red-establish to the last observation and constitutes the prosecuzione of the precedence; it is entitled to the violation of artt.101 the TFUE and 2 of the l. 287/90, to the insussistenza of suitable the endogenous and exogenous elements to demonstrate the restrictive understanding, to the defect of preliminary investigation and deficiency of motivation, to the excess to be able for travesty of the facts, illogicità and manifest injustice.

2.1.2. The appealled provision would have considered important, to the fine antitrusts, contacts and exchanges of information between enterprises, strangers to a collusiva understanding; moreover, it would not have acquitted to the burden to demonstrate to the absence of explanations suitable alternatives to put up with the accusatory hypothesis.

2.1.3. A “practical one agreed”, it observes the recurrent one, recalling the internal jurisprudence and communitarian, it is a form of coordination between enterprises that, without being pushed until the performance of a real agreement, a practical collaboration between the same ones to the risks of the competition wittingly replaces: so that one comes true, it is necessary that constant behaviors, uniforms and parallels are yield not of unilateral initiatives, but of a concertazione, and they are insuscettibili of an explanation alternative regarding the anti-competitive scope.

2.1.4. The existence of the illicit one, as well as to turn out from documents, can also be demonstrated for indications, distinguishing between endogenous, afferent elements the anomaly of the conduct of the enterprises, not explicable second a physiological relationship from each other, and exogenous elements, which the existence of systematic contacts between the enterprises and exchanges of information.

In the presence of endogenous evidences consider themselves to be up to the Authority the burden to demonstrate to the irrationality of the conduct and the attitude of the accusatory hypothesis to justify the contested fattispecie.

Instead, the onus of proof can endure a reversal in head to the parts for how much it concerns to the exogenous indications, and only in the presence of a systematic exchange of information between enterprises, in relation to which there are reasonable indications of practical agreed an anti-competitive one, weighs on the inquired enterprises the probative burden of a various lawful explanation of own conducts.

2.2.1. In any case, the accusatory hypothesis could be received, when it turns out the only one in a position to justifying the several elements, or is however clearly preferable respect to every other interpretation alternative: so, in order to demonstrate the agreed existence of a practical one an additional element regarding the simple uniformity of the conducts would be necessary, such to suffragare the existence of an illegitimate behavior.

2.2.2. In species, second the Moby, the A.G.C.M would have not only lacked to the burden to try the existence of endogenous indications, but, moreover, she would have transferred the relative burden on the parts; still, “erroneously it would immotivatamente and have considered characterized of the contacts between enterprises (exogenous indications), which in reality are completely strangers to the fattispecie”.

2.3.1. First of all, the Antitrust has attributed indiziaria valence to two “occasions of contact” that they would have had the function “to consolidate the outcomes you colluded to you” ‘already otherwise come true.

2.3.2. Draft, first of all, of the participation by Moby, GNV and SNAV (these last ones through the controlling Marinvest) to the procedure of privatization of Tirrenia, in the within of which an exchange about the “respective tariff policies” would be taken part.

2.3.3. Still, reference to two understandings between Moby and GNV is made on the routes Civitavecchia-Olbia and Genoa - Porto Torres, (§ 157 of the provision): before tails sharing (an agreement between carriers, where one of the two commercializes the services supplied from another, for which, buying a ticket from one, can be transported also on the ferries of the other), and the other in order to address towards Moby the GNV customers, whose question could not be directly satisfied.

2.4.1. Moreover, second the recurrent one, the elements in word would not be serious, you specify and concordant, and suitable, in absence of justifications alternatives, to reveal the existence of a concertazione: an activity for the exchange of information would lack, foreordained to the definition of a convergent strategy, or suitable documents to demonstrate to the existence of an inherent concertazione the tariff policies.

2.4.2. In truth, for how much the contacts between Moby and GNV/SNAV, in the within of the privatization of Tirrenia, nothing proves that, in such occasion of contact, the enterprises have persecuted a collusivo scope, and they have not instead intended to realize a completely distinguished operation: the constitution of the common enterprise Italian Company of navigation - C.I.N., than it is achieved some, alone does not demonstrate some mechanism of concertazione.

2.4.3. The Authority, however, would not have supplied some demonstrative indication the existence of a precise mechanism of concertazione, and Moby would have demonstrated already in the proceedings the irrelevancy of the documents that, second the A.G.C.M., could have corroborated the thesis of the importance of the exchanges of information happened in center CIN.

For the Authority, however, the mere existence of a contact between the involved subjects, to prescind from the contents and the period of reference would be sufficient indication of a collusivo agreement: without to consider as this evidences solo as the enterprises have had of the entrepreneurial relationships, presumablly finalized to the formulation of the agreement.

2.4.4. For how much instead it regards the commercial agreements between Moby and GNV, which already it has been mentioned, I'A.G.C.M attributes the function to it to consolidate the attempts colluded to you reached for the Civitavecchia-Olbia routes already and Torres Genoa-Port, for which the new Saremar operator, in spring 2011, announced aggressive politics of prices.

2.4.5. In truth, for how much it concerns the agreement of tails sharing, such fattispecie does not have intrinsically illicit valence, constituting a precise burden of the Authority to verify “case by chance” if such legal outlines can or less to assume collusiva valence: here elements are not offered that they confirm the agreed existence of the practical one.

2.4.6. Insignificant it would be also the agreement on June 15, 2011, for which, as saying, GNV has carried out reservations and sold tickets for the ships of Moby, on the line Genoa " Porto Torres for a commission pairs to 20%.

Such agreement, and the expected outflow of the customers from other companies, verification for analogous agreements of commercialization, concluded from other companies, and not considered would not be different from how much for such as anti-competitive.

2.5.1. The A.G.C.M., with regard to the endogenous elements, has among other things asserted that “neither the elasticity of the question, neither the transparency of the market, neither the increment of the cost of the fuel, neither, at last, the losses endured from the operators has turned out suitable elements to justify the contextual pull-up of the prices of the ferries for the Sardinia in summery season 2011”: the parts “would not have supplied reasonable an technical-economic demonstration of the anomalous only assumed commercial behavior in 2011, neither they have produced analyses which supported from apt business data suffragare the independent thesis of and the aware chosen to increase significantly the prices”.

2.5.2. From such affirmations the recurrent one deduces as the Authority, in contrast with the prevailing jurisprudence, has indebtedness transferred the probative burden on the enterprises subordinates to the procedure, when instead it was up them to prove as the accusatory hypothesis was the only one in a position to justifying the several elements, or however that clearly preferable, respect to every hypothesis alternative.

Instead it would have been limited to a mere and prioristic confutation of the data supplied from the same enterprises, founded on erroneous and insufficient reasonings to demonstrate the existence of an imputable lesiva conduct to Moby.

3.1.1. Orbene, while remembers the College as art. the 101 of the T.F.U.E. (but equally art. the 2 of the l. 287/90) establish that they are incompatible with the home market and prohibited all the agreements between enterprises, all the decisions of associations of enterprises and all the practical ones agreed that they can prejudice the commerce between Member States and that they have for object or effect to inside prevent, to shrink or to forge the game of the competition of the home market: and, second the A.G.C.M., in this case such contacts would have come true and taken the agreed form of the practical one.

3.1.2. This, regarding the agreement, constitutes a minus that it takes the form of coordination between enterprises: without to push until the performance of a real agreement, determined with an express consent, “wittingly replaces a practical collaboration between the same ones to the risks of the competition” (C.d.S., YOU, 13 May 2011, n. 2925).

3.1.3. In truth, because parallelism of the behaviors between more enterprises becomes an illicit conduct is necessary that it is agreed: therefore, for irrogare an endorsement a test, directed or presumptive is necessary, of a concertazione between the enterprises, that is of an informative flow between the same ones that precedes and can persist with the objective data of the behavior, and functional is adapted to provoke it.

3.1.4. He is instead certain as, in general terms, every operator is at liberty to modify as he wants own prices, and can hold account, to such fine, of the current or expectable conducts of its competitors: the autonomy affords to the operators “to adapt itself cleverly to the behavior that their competitors hold or presumablly they will hold”, provided that between the same operators direct contacts do not take place or indirect leading in the combined definition of very it specifies action line (cfr. Law court EU, sez. V, 2 October 2003, in procedure C-179/99 P).

3.2.1. Now, the College must first of all find as there is, in the event under investigation, a single incontestable data, and that is that in the 2011 rates of the ferries for the Sardinia they have grown in sensitive measure: in the sense that the user - and so the subjects that them are contiguous, as the associations of consumers and the Sardinia Region - has generally perceived the increase as exceeding the increment anniversary reasonably attended in that time for similar performances.

3.2.2. That place, is not only problematic, but quite impossible, analytically to determine the entity of such increases, for companies, drafts, periods of the year and types of travel.

It recognizes the same A.G.C.M., than, in fact, which proxy of the unitary average price has used the unitary medium revenue for passenger: since it has sure a conspicuous economic interest - and also evidently political, date the importance of the connections between Sardinia and continental Italy - but that he does not seem determining, when the existence of a pre-emptive coordination between the economic operators must be ascertained who supply the transport services in question: objective for which it would be certainly important to know the respective tariff increases, with the correspondences, also temporal, that is the divergences, to the aim to confirm or less the deduction concertazione.

3.2.3. On the contrary, in the provision the Authority has not succeeded to establish concrete dynamics of the increase of the prices, reconstructed in highly summarized and partial way for which reassuring elements lack in order to assert that all the operators have increased the rates homogeneously, with uniform addresses and synchronisms you suspect.

3.2.4. In fact, as with computerized management of the reservations by now it allows, the rates, are not fixed rigidly at the beginning of the year, for a period of predefined time, if not for wide limits of belt: inside these the prices vary cospicuamente, adapting itself to the characteristics of the market in general terms, and to the question for determining covered and single travel.

3.2.5. The prices are conoscibili from all, and in fact every company monitors those of the others constantly and this, in itself, does not anticipate illiceità profiles.

He is then abstractly reasonable that one of the interested societies of navigation - all in loss, go said, in the interest period - has decided in full autonomy to start a first series of increases, and to these are followed, in pairs autonomy, those of the other companies, that they had learned of first, and to that point they had considered more convenient not to continue to practice prices that did not repay the costs of the service.

3.2.6. In other words, the simple increase of the prices in itself does not demonstrate the existence of a pre-emptive understanding: this is that is not not the only possible unknown antecedent of the famous fact, constituted from the tariff increment.

3.3.2. As better it will be seen more ahead not is here the direct test of the concertazione, sicché indirect one would have some to be characterized that, based on specific indications, serious, specifies and concordant, which demonstrate that those given to behavior parallel on the market cannot be explained otherwise that with a concertazione.

3.3.3. Now, the College does not consider that the Authority has supplied an adapted argomentativo apparatus in such sense, ché enough not to support that the increase is inexplicable if not with an agreement, neither this is deduced from the formulated critical reliefs on the proposed defensive arguments by Moby - without being not even obliged to make it, and without to determine a reversal of the onus of proof - nel course of the procedure in order to justify the decision to arrange the increases: but it seems useful to examine those same elements now in order to confirm the reached conclusion as soon as.

3.4.1. In truth, the recurrent one, in order to justify the increment of the prices, had made to find first of all that the recurrent one had maintained the rates unchanged, or it had quite reduced them until 2009, and in the 2010 Moby it had recorded losses for € 20.859.000, 00 (in the 2011 will be pairs to € 2.482.000, 00 and to € 15.533.000, 00 in 2012), aloof the obligation to assure I re-enter of the obtained financings (covenants).

It had still represented as the fuel had conspicuous increases (29% in 2010 and 39% in 2011 quickly), and as, in general terms, than the question of marine transport, mainly that back the Sardinia, had gone diminishing (for Moby 3% in less in 2010).

3.4.2. Now, on everyone of these elements the provision opposes own objections, which the resource anticipates the relative rejoinders, but to the College it seems here useless to examine in detail these and those.

He is instead sufficient noticing that the elements indicated by Moby - entity of the losses, increase of the fuel, reduction of the passengers - are corrected in their presence and measure, in with conspicuous: such that is to be profitable likely, according to reasonableness, the decision its and of the other companies, to increase the rates also without pre-emptive agreements (in same year GNV had losses for 37,9 million euros quickly).

3.4.3. The College does not want so to assert that sure for the rates not a practical one was agreed (or that it has not been however marked from an enterprise to the other a decision by now assumed), but only that the appealled provision and the actions instructors of it does not attest the existence.

3.4.4. In particular it is not demonstrated that the increases of Moby - than, as visa, punctually they are among other things not defined - are disproportionate to the measure of the losses.

In its turn, affirmation of Authority, for which the increase of the prices, if not agreed before, never it would not be had because it could only have produced ulterior losses, constitutes an arguable argument decidedly.

3.4.5. It does not consider, first of all, than every concurrent aware era of the analogous difficulties of the other companies and could reasonably count that it would be followed: and so it has been, second how much the same Authority has recognized, for Forship, than it is not endorsed, although she also increased the prices has, as the same one would have carried out a role of follower of the policies of price of the competitors.

Moreover, since, as it has been seen, all the navigation societies put into effect a constant monitoring of the prices of the other companies, nothing would have prevented to reconsider the arranged increases, if the competitors had not arranged them.

3.4.6. It cannot anyway be forgotten that, as already has been mentioned, own in the course of 2011 would have had to be acquired from the remembered Italian Company of Navigation - C.I.N. (initially composed, from Group Grimaldi, Moby Lines and Marinvest: other much tormented event, for the implications in matter of protection of the competition) Tirrenia di Navigazione S.p.A., to public control and in state of insolvency from the half of 2010.

This had carried out for long years the marine transport also with the Sardinia to prices decidedly contents, and not by now reasonably more practicable: and the next transformation of a competitor, that it then had but until tax a calmieramento of the field, reaching however, in short, to the failure, can have independently sped up the companies, each, to arrange the increase of the rates.

3.5.1. Not there are then doubts that the relations elapsed between Moby and the other societies who would have constituted the C.I.N do not offer realize elements useful in order to support the agreed existence of a practical one.

It can but to conjecture that between the future associates they have been of the hidden parasociali pacts, reported also to the rates, but of it lacks is a direct reply (and this is comprehensible), is any indirect indication: and the verisimilitude, alone, cannot be considered sufficient.

3.5.2. For how much at last it regards the agreements of tails sharing, not even these do not supply some useful indication of a pre-emptive agreement: also the understandings notes do not presuppose here, or they do not return however that unknown person probable. reported to the rates of the two societies.

4. In conclusion, not they can that to receive the two censorships.

The Authority has not succeeded effectively to demonstrate, not even for presumptions, the fondatezza of its thesis, that is that the increases of prices practiced by Moby have been the agreed effect of a practical one.

The fact that this is abstractly possible is not evidently sufficient, since the absence of a pre-emptive agreement is equally sustainable, in the concrete conditions in which the increases is arranged, neither the public interest to the maintenance of the pre-existing rates can minimally interfere with the need of a respect of ineludible principles in matter of division of the onus of proof.

4.2. The remaining reasons of resource can be absorbed.

The argument expenses, compensated for half, follow for the remainder the soccombenza and are liquidated as by device.

P.Q.M.

The Regional administrative court for the Latium (Section Before), definitively pronouncing on the resource in epigraph, receives it and, for the effect cancels the provision in appealled epigraph, in the part in which sentence Moby S.p.A., to the payment of an endorsement pairs to € 5.462.310.

It integrally compensates the expenses of argument between the recurrent one, controinteressata and the joined parties and in reason of the half between that and the guarantor Authority of the competition and the market - Antitrust, than sentence to the residual remelting of in favour of Moby, liquidating it in € 10,000, 00 for compensations beyond i.v.a.e c.p.a overhead expenses, besides the remelting of the poured sum of contribution for a reason or purpose which unified, as for law.

It orders that sentence anticipates is executed by the administrative authority.

So decided in Rome in the Council Chamber addì 29 January 2014 with the participation of the gentleman magistrates:
Calogero Piscitello, President
Angelo Gabbricci, Councilman, Drafter
Alessandro Tomassetti, Councilman

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 07/05/2014
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)



N. 04730/2014 REG.PROV.COLL.
N. 07943/2013 REG.RIC.
N. 09209/2013 REG.RIC.
N. 09210/2013 REG.RIC.

ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for Lazio
(Section Before)

it has pronounced anticipates

SENTENCE

on reunited 7943, 9209 and 9210/13, proposed resources
first from the Large ones the Navi Veloci S.p.A., in person of the legal representative pro tempore, assisted and defended from the avv. you Grassani and Cintioli,
according to from Marinvest S.r.l., in person of the legal representative pro tempore, and third party from SNAV S.p.A., in both, representative person of the legal pro tempore assisted and defense from the avv. you Cintioli, Ravenna and Bruno,
all and three electively domiciled near the study of the avv. F. Cintioli in Rome, via Vittoria Colonna 32;

against

the guarantor Authority of the competition and the market - Antitrust, in person of the legal representative pro tempore, assisted and defended from the Legal profession Of the State, domiciled in Rome, via of the Portugueses, 12;

regarding

Forship S.p.A., in person of the legal representative pro tempore, represented and defended from the avv. Tavella and Fabrizi, with address which elected near the study of the second in Rome, via Ludovisi, 16;

and with the participation of

to opponendum:
Altroconsumo - Independent Association of Consumers, in person of the legal representative pro tempore, assisted and defended from the avv. you Martinello, Afferni and Scorza, with address which elected near the study of the last one, in Rome, via of the Barbers, 6;
the Independent Region of the Sardinia, in person of the legal representative pro tempore, assisted and defended from the avv. you Roberti, Ledda, Sau and Bellitti, with address which elected near the study of the last one in Rome, Trajan Hole 1/A;
the Coordination of the associations for the defense of the atmosphere and the rights of the users and the consumers - Codacons, in person of the legal representative pro tempore, assisted and defended from the avv. C. Rienzi, with address which elected in Rome, Mazzini tree-lined avenue, 73, near the legal Office national Codacons.

for the cancellation,

for the three proposed resources, in the limits of the respective interest,

of the provision of the guarantor Authority of the competition and the market, published in 14 date june 2013 on the website, relative to the conclusion of the I743 procedure - rates you ferry da/per the Sardinia, for the part in which the sentence to the payment of an endorsement pairs respective to € 2.370.795 for G.N.V., € 231,765 for SNAV and € 42,575 for Marinvest, for allegated violation of art. the 101 of the TFUE.

Seen the relative resources and the attached ones;
Seen the certificates of incorporation di in judgment of the Antitrust, of Forship S.p.A., the Sardinia Region, the Codacons and Altroconsumo;
Seen the defensive memories;
Visas all the actions of the cause;
Reporter in the public audience of the day 29 January 2014 the cons. avv. To. Gabbricci and hearings for the parts the defenders as specified in the minutes;
Considered and considered in fact and right how much follows.

FACT

To. Marinvest S.r.l he is a holding ones in the field of the marine transport without operating functions that control, between the others, SNAV S.p.A and Grandi Navi Veloci - G.N.V. S.p.A., both societies of navigation.

To conclusion of the procedure n. I743, started in May 2011, the guarantor Authority of the competition and the market - Antitrust has established that, in violation of art. the 101 of the Treaty on the operation of European Union (T.F.U.E.), Marinvest, G.N.V and S.N.A.V together with Moby S.p.A., other enterprise of the field, according to illegitimate agreements between they elapsed and by means of a parallelism of conducts, in summery season 2011 had increased in average of 65% the prices of the marine transport of line for passengers in the connections from and for the Sardinia, on the drafts Civitavecchia-Olbia/Golfo Aranci, Genoa-Olbia, Livorno-Olbia/Golfo Aranci and Genoa/I go Torres From Liguria-Port.

B. the conclusive provision, notified from on June 14, 2013, brings the sentence for each of the four societies to the payment of pecuniary endorsements, pairs to € 5.462.310 for Moby S.p.A., € 2.370.795 for G.N.V., € 231,765 for SNAV and € 42,575 for Marinvest; contextually a fifth company of navigation is excluded that, Forship S.p.A., operating on the Livorno-Olbia route, was part of the understanding, also having also it cospicuamente increased own rates in that year.

Adverse C. the provision in question has proposed separated resorted, reunited for the obvious subjective and objective connection, Large the Navi Veloci S.p.A., Marinvest S.r.l., and SNAV S.p.A. here; in its turn Moby S.p.A has proposed an own resource, object of a distinguished decision.

In the three judgments the Authority has been formed; they are taken part it is Forship, it is the Sardinia Region that the associations Altroconsumo and Codacons.

STRAIGHT

1.1. Main thema the decidendum of the controversy is content, also with some specifications, in the municipality first reason of the three resources, rubricato in the violation and forges application of art. the 2 of the l. 287/1990 and of art. the 101 T.F.U.E.; in the excess to be able for unreasonableness on the subsistence of requirement of the practical one agreed the national and communitarian jurisprudence second, in the illogicità, contraddittorietà and manifest injustice; in the defect of preliminary investigation and the deficiency of motivation.

1.2.1. It is while opportune to remind as art. the 101 of the T.F.U.E. (but equally art. the 2 cit.) it establishes that they are incompatible with the home market and prohibited all the agreements between enterprises, all the decisions of associations of enterprises and all the practical ones agreed that they can prejudice the commerce between Member States and that they have for object or effect to inside prevent, to shrink or to forge the game of the competition of the home market.

1.2.2. According to the A.G.C.M., such contacts would have come true and would have taken the agreed form of the practical one here: a form of coordination between enterprises that, for the internal and communitarian jurisprudence, without to push itself until the performance of a real agreement, a practical collaboration between the same enterprises wittingly replaces to the risks of the competition.

1.2.3. The agreed fattispecie of the practical one demands therefore, also in absence of a formal agreement, falling back, realizes and directed, on the conduct of the involved enterprises, such from usually being able to shape c.d parallelism of the behaviors: these, uniforms and parallels, held from the involved enterprises, do not have to be the outcome of unilateral initiatives, but of a concertazione, neither susceptible of an explanation alternative regarding the anti-competitive scope.

1.2.4. In truth, they continue recurrent, the form more frequent than practical agreed is that in which to parallelism an exchange of information between the enterprises has been accompanied, bringing given sensitive and, therefore, important and relevant to that determined behavior: a characterized contact, with a precise nexus motive, giacché those information are instrumental to those given anti-competitive parallelism.

1.2.5. The existence of the illicit one, as well as to turn out from documents, it can also be demonstrated for indications, distinguishing between endogenous, afferent elements the anomaly of the conduct of the enterprises, and exogenous elements, which the existence of systematic contacts between the enterprises and exchanges of information: for first the burden is up of maximum to the Authority to demonstrate the irrationality of the conduct, while the onus of proof can endure a reversal in head to the enterprises, for how much it concerns to the exogenous indications, in the presence of a systematic exchange of information between them.

1.2.6. In any case, the accusatory hypothesis could be received, when it is the only one in a position to justifying the several elements, or is however clearly preferable respect to every other interpretation alternative: so, in order to demonstrate the agreed existence of a practical one an additional element regarding the simple uniformity of the conducts is necessary, such to suffragare the existence of an illegitimate behavior.

2.1. In species, second the recurrent ones, the A.G.C.M would have not only lacked to the burden to try the existence of endogenous indications, but, moreover, it would have transferred the relative burden on the parts; still, immotivatamente and erroneously it would have considered characterized of the contacts between enterprises, which in reality are completely strangers to the fattispecie.

2.2.1. While, law in the resources, the provision asserts that the tariff rise of 2011 would constitute “a practical one agreed as there would be a parallelism of the conducts and the same ones would not find other explanation if not in the existence of a trust”: but such reconstruction would violate all the principles in matter of division of the onus of proof.

2.2.2. For constant jurisprudence, in fact, in the procedures having to object the assessment of an illicit antitrust would be incumbent on the Authority a particularly rigorous probative burden, to acquit with sufficiently precise and concordant evidences, this in particular when it agrees to support the existence of a practical one agreed resorting to arguments of merely presumptive type.

2.2.3. In species, the Authority, rather than to explain because the increases of 2011 could not that to be I yield of a concertazione between the enterprises, has been limited to accuse the enterprises, transferring on they the burden to try eventual explanations alternatives; afterwards, how much the same ones have introduced their observations, the Authority would have substantially set aside them.

However, the conclusion for which the Forship enterprise he is a simple one follower already would demonstrate that there were explanations alternatives, since not would be other way in order to explain that, according to player of the market after Moby, also having practiced “advanced increases also to the others, is considered stranger to the concertazione”.

2.3.1. The appealled provision ago reference to “behaviors parallels not only consisting in generalized and meaningful increases of the prices for summery season 2011”, but also to the fact that such behaviors would be supported by characterized contacts between the parts, rinvenibili in occasion of the procedure of privatization of Tirrenia, let alone in the subscription of commercial agreements.

2.3.2. Such elements, moreover, would not introduce a nexus motive with the expected tariff trust, and this varrebbe first of all, second the recurrent parts, for the Tirrenia event.

Marinvest, together with Moby and to other operators of field, part to the procedure of privatization of Tirrenia di Navigazione S.p.A., then to public control, and in state of insolvency from the half of 2010, and so to the constitution of the Italian Company of navigation - C.I.N taken in fact., that draft for true would then have had to acquire Tirrenia (of a much tormented event, for the implications in matter of protection of the competition): own the common presence in C.I.N would be, for the Authority, important indication of the relative concertazione to the increases of the rates.

Moreover, second recurrent, the nothing one proves that, in such occasion of contact, the enterprises have persecuted a collusivo scope, and has not instead intended only to realize the operation that effectively is achieved some, and that alone it does not demonstrate some mechanism of concertazione.

2.3.3. For how much then it concerns the commercial agreements between GNV and Moby, reference to two understandings is made on the Civitavecchia-Olbia routes and Genoa - Porto Torres (§ 157 of the provision): before tails sharing (an agreement between carriers, where one of the two commercializes the services supplied from another, for which, buying a ticket from one, can be transported also on the ferries of the other), and the other in order to address towards Moby the GNV customers, whose question could not be directly satisfied.

2.3.4. Now, the same provision among other things recognizes while such agreements are not in itself restrictive of the competition, but only occasions of contact between the parts (, only between two of the enterprises then endorsed).

In truth, recurrent the not ravvisano some nexus motive and some instrumentality between such agreements - in itself you attend in the field of the marine cabotage - and the events of the transport for the Sardinia: and, so that, the contacts between enterprises can assume importance under the profile antitrust and can, therefore, to be said qualified, is necessary that the same ones regard encounters in which it emerges clearly that the parts intended to concert practical contrary to the competition.

3.1.1. Orbene, in estimating the fondatezza of the censorship, the College restates, first of all, as the practical one agreed - the illicit one of which the recurrent ones would be responsible - takes the form of coordination between enterprises and constitutes a minus, respect to a real anti-competitive agreement: without to push until the performance, determined with an express consent, “wittingly replaces a practical collaboration between the same ones to the risks of the competition” (C.d.S., YOU, 13 May 2011, n. 2925).

3.1.2. In truth, because parallelism of the behaviors between more enterprises becomes an illicit conduct is necessary that it is agreed: therefore, for irrogare an endorsement it wants a test to us, directed or presumptive, of a concertazione between the enterprises, that is of an informative flow between the same ones that precedes and can persist with the objective data of the behavior, and functional is adapted to provoke it.

3.1.3. He is instead certain as, in general terms, every operator is at liberty to modify as he wants own prices, and can hold account, to such fine, of the current or expectable conducts of its competitors: the autonomy affords to the operators “to adapt itself cleverly to the behavior that their competitors hold or presumablly they will hold”, provided that between the same operators direct contacts do not take place or indirect leading in the combined definition of very it specifies action line (cfr. Law court EU, sez. V, 2 October 2003, in procedure C-179/99 P).

3.2.1. In this case, the A.G.C.M has asserted that “neither the elasticity of the question, neither the transparency of the market, neither the increment of the cost of the fuel, neither, at last, the losses endured from the operators has turned out suitable elements to justify the contextual pull-up of the prices of the ferries for the Sardinia in summery season 2011”.

The parts “would not have supplied reasonable an technical-economic demonstration of the anomalous only assumed commercial behavior in 2011”, neither they would have produced “analyses which supported from apt business data suffragare the independent thesis of and the aware chosen to increase significantly the prices”.

3.2.2. , So in support of the allegated restrictive understanding of the competition, the provision assumes the subsistence of a “parallelism of conducts, in summery season 2011, by Moby, GNV and SNAV, which have all junior clerk increase meaningful of the prices, generally advanced to 65%”: the contemporary increase of the prices would express the will, for those enterprises, to concert the market strategies.

3.2.3. An Authority admits, for true, than, being the elevated level of differentiation of the produced ones, an only level of price for every operator is not ravvisabile on the market, neither the rates altogether practiced by the interested companies is homogenous.

The A.G.C.M has so founded own analysis on the unitary medium revenues for passenger, considering such value a “proxy of the practiced unitary average price from the enterprises”: and a variable proxy is, usually, a statistical indicator who directly describes the behavior of a determined not observable economic aggregate.

3.2.4. In such a way, however, the provision effectively does not indicate the rates practiced by the various companies on the single routes in the various interested seasons, neither clarifies the procedure with which the Authority it has elaborated such data: it has deduced the economic indication not comparing the data (which rates, single offers, voices of cost, segmentation of the question), but using the parameter of the unitary medium revenue, that it exceeds in the average varied 65% and from company to company inside a scissor comprised between 50% and 150%.

3.3.1. In reality, to warning of this judge, in the event under investigation there is a single incontestable data, and that is that in the 2011 rates of the ferries for the Sardinia they have grown in much sensitive measure, for the maximum part of the operators: in the sense that the user - and so the subjects that them are contiguous, as the associations of consumers and the Sardinia Region - has generally perceived the increase as exceeding the increment anniversary reasonably attended in that time for similar performances.

3.3.2. However, it is not only problematic, but quite impossible, to know in detail the entity of such increases, for companies, drafts, periods of the year and types of travel, and not only for this College, but for the same A.G.C.M., that it has diffusely used the reminded proxy in the many tables that - perhaps in excess they accompany the appealled provision.

3.3.3. In truth, the unitary medium revenue sure constitutes a data of large finds economic - and also evidently political, date the importance of the connections between Sardinia and continental Italy - but that he does not seem determining, when must be ascertained the existence of a pre-emptive coordination between the economic operators who supply the transport services in question: objective for which he would be certainly preferable know the real tariff increases, with the correspondences, also temporal, that is the divergences, to the aim to confirm or less the deduction concertazione.

On the contrary, in the provision the Authority has not succeeded to fix concrete dynamics of the increase of the single prices, for which reassuring elements lack in order to assert that all the operators have increased the rates homogeneously, with uniform addresses and synchronisms you suspect.

3.3.3. It is anyway well-known that the computerized management of the reservations by now allows at the beginning not to crystallize the rates of the year in lists of which predetermined duration, limiting itself to define large sections of prices, to whose inside the amounts then oscillate cospicuamente, adapting itself to the characteristics of the market in general terms, and also to the question for determining covered and single travel.

On the other hand, the prices are conoscibili from all, and it can reasonably be presumed that every company monitors those of the others constantly: this that, in itself, does not anticipate illiceità profiles.

3.4. He is then reasonable that one of the interested societies of navigation - all in loss in the interest period - has decided in full autonomy - that is without advance concertazione - to start a first series of increases, and to these they are followed, in pairs autonomy, those of the other companies, that they had learned of first, and to that point they had considered more convenient not to continue to practice prices that did not repay the costs of the service.

In other words, the simple increase of the prices in itself does not demonstrate the existence of a pre-emptive understanding: this is that is not not the only possible unknown antecedent of the famous fact, constituted by the tariff increment, which therefore enough not to demonstrate the concertazione, that it would have therefore to be characterized here through specific indications, serious, you specify and concordant, which demonstrate that those given to behavior parallel on the market cannot be explained otherwise.

3.5.1. Well, the College does not consider that the Authority has supplied an adapted argomentativo apparatus in such sense.

Enough in truth not to declare that the increase is explicable single with an agreement; neither this is deduced from the formulated critical reliefs on the proposed defensive arguments from the recurrent ones in the course of the procedure.

3.5.2. In synthesis - aloof relative specific profiles to their position (for Marivest the absence of any operating, which holding activity of the group; for SNAV the escape, at the beginning of 2011 from the routes for the Sardinia) - the recurrent ones in order to justify the increment of the prices, have indicated in particular the losses of management (in the 2010 GNV quickly had losses for 37,9 million euros) and the increase of the cost for the fuel, against a decrease of the question of marine transport towards the Sardinia.

3.5.3. Now, the provision exposes its controdeduzioni on everyone of these elements, but to the College it seems useless to examine them in detail here: it will be enough to notice that the indicated exculpatory elements from the recurrent ones (than they were not moreover obliged to make it) are you anticipate and conspicuous, so to be profitable likely, according to reasonableness, the individual decision to increase the rates, also without pre-emptive agreements.

3.5.4. The College so does not intend to assert that sure the rates are not the agreed result of a practical one (or that it has not been however marked from an enterprise to the other a decision of increase by now assumed), but only that the appealled provision and the actions instructors of it does not demonstrate the existence.

In particular it is not tried that the increases are disproportionate to the measure of the losses; and the affirmation of the Authority, for which the increase of the prices, if not agreed before, never it would not be had, as it could only have determined ulterior losses, constitutes an arguable argument decidedly.

3.5.5. It does not consider, first of all, than every concurrent aware era of the analogous difficulties of the other companies and could reasonably count that it would be followed: and so it has been, second how much the same Authority has recognized, for Forship, which is not endorsed, also having increased the prices, as, as saying, the same one would have carried out a role of follower of the policies of price of the competitors.

Moreover, since, as it has been seen, all the navigation societies put into effect a constant monitoring of the prices of the other companies, nothing would have prevented to reconsider the arranged increases, if the competitors had not adopted the same politics.

3.5.6. It cannot anyway be forgotten that, as already has been mentioned, own in the course of 2011 would have had to be definitively privatized Tirrenia of navigation, that the marine transport had exercised very many years years, also with the Sardinia to contained prices, not by now reasonably more practicable.

As law in the conclusive memory of the Sardinia Region, Tirrenia had represented “fundamental constraint [a calmieratore one] of price regarding private that, otherwise could freely have increased the medium level of own rates”: the presence of Tirrenia “has been a fundamental competitive counterbalance, for its same nature of subject public, directly and totally controlled from the State”.

So, with the end of the Tirrenia model a fundamental ceiling price of the prices has failed “”, with the consequence “that the collusivo risk, species with regards to the price fixing is increased in exponential way”.

Now, this last affirmation is arguable, and reversible in the opposite assertion for which the virtual one disappeared of a competitor, that it then had but until tax a calmieramento of the field, reaching then, in short, to the failure, it could have induced each of the interested companies, to increase the rates independently.

3.6.1. Not there are then doubts that the relations elapsed between recurrent and the other societies that would have constituted the C.I.N do not offer realize elements useful in order to support the agreed existence of a practical one.

It can but to conjecture that between the future associates they have been of the hidden parasociali pacts, reported also to the rates, but of it lacks is undermines direct reply (and this is comprehensible), is any serious and precise indirect indication, neither the verisimilitude, alone, cannot be considered sufficient.

3.6.2. For how much, in particular, it regards the agreements of tails sharing, not even these do not supply some useful indication of a pre-emptive agreement.

It goes restated that such agreements do not have intrinsically illicit valence, constituting a precise burden of the Authority to verify case by chance if such legal outlines can or less to assume collusiva valence.

3.6.3. In the species elements are not offered, which confirm the agreed existence of the practical one: the specific agreements, for such, do not presuppose practical a tariff one shared between the two societies that had concluded them, and this without exactly to forget that such agreements regard alone two of the subjects then endorsed.

4.1. In conclusion, not it can that to receive the censorship.

The Authority has not succeeded to demonstrate, not even for presumptions, the fondatezza of its thesis, that is that the increases of prices practiced from the recurrent ones have been the agreed effect of a practical one.

The fact that this is abstractly possible is not evidently sufficient, since the absence of a pre-emptive agreement is equally sustainable, in the concrete conditions in which the increases is arranged, neither the public interest to the maintenance of the pre-existing rates can minimally interfere with the need of a respect of ineludible principles in matter of division of the onus of proof.

4.2. The remaining reasons of resource can be absorbed.

The argument expenses, compensated for half, follow for the remainder the soccombenza and are liquidated as by device.

P.Q.M.

The Regional administrative court for the Latium (Section Before), definitively pronouncing on the resources in epigraph, advance reunion, receives them and, for the effect, he cancels the provision in appealled epigraph, the part in which sentence to the payment of an endorsement pairs respective to € 2.370.795 for G.N.V., € 231,765 for SNAV and € 42,575 for Marinvest.

It integrally compensates the expenses of argument between the recurrent ones, controinteressata and the joined parties, and in reason of the half between those and the guarantor Authority of the competition and the market - Antitrust, than sentence to the residual remelting of in they the favor, liquidating it loyally in € 20,000, 00 (ventimila/00) for compensations beyond i.v.a., c.p.a and overhead expenses, besides the remelting of the sums poured from each of they of contribution for a reason or purpose which unified, as for law.

It orders that sentence anticipates is executed by the administrative authority.

So decided in Rome in the Council Chamber addì 29 January 2014 with the participation of the gentleman magistrates:
Calogero Piscitello, President
Angelo Gabbricci, Councilman, Drafter
Alessandro Tomassetti, Councilman

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 07/05/2014
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)







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