Coop Italia and Alleanza 3.0 win on appeal before the Council of State, with Osborne Clarke, on the preliminary investigation into commercial relations between operators in the agri-food chain, annulling the heart of the contested decision.
In proceedings before the Council of State on the preliminary investigation ‘AL14 Coop Italia - Centrale Adriatica / Contractual conditions with suppliers’, Coop Italia and Alleanza 3.0 obtained the annulment of the heart of the contested decision and, therefore, of two of the three sanctions imposed by the Italian Competition Authority (AGCM).
Coop Italia and Alleanza 3.0 were assisted by an Osborne Clarke legal team, formed by partners Enrico Fabrizi and Giorgio Lezzi, counsel Angelo Molinaro, and senior associate Federica Fischetti.
This was a case concerning the application of the previous ‘Rules on commercial relations regarding the sale of agricultural and agri-food products’ (art. 62 of Law Decree dated 24 January 2012, n. 1).
Agreeing with the appellants' arguments on the lack of proof, the Council of State annulled the Competition Authority's measure that had originally held:
- that the relationship between the Cooperatives and their supplier Celox was characterised by a ‘significant imbalance of bargaining power’ in favour of the former
- that, relying on this imbalance, the Cooperatives had imposed ‘unjustifiably onerous’ contractual conditions and ‘extra-contractual’ conditions.
Based on important principles regarding the proof of wrongdoing, the Council of State's decision confirmed the correctness of the conduct of Coop Italia and Alleanza 3.0, excluding that there had been an imposition of contractual conditions. In light of the documentation in the file, the Council of State essentially found that the contractual terms had been the subject of negotiation between the parties and that Celox was ‘interested in the continuation of an advantageous contractual relationship’.
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