The decision represents the first Italian case of application of the leniency programme in the context of a cartel concerning public tenders.
The defence team, composed of Osborne Clarke with partner Enrico Fabrizi and Valeria Veneziano, Cintioli & Associati with founding partner Prof. Avv. Fabio Cintioli and David Astorre and Prof. Avv. Gustavo Olivieri, successfully assisted C.N.S. (Consorzio Nazionale Servizi) in the proceedings before the Council of State on the "I808-Gara Consip FM4" antitrust investigation, obtaining the annulment of the approximately €40 million fine imposed by the Italian Antitrust Authority.
This is the first Italian case of application of the leniency programme in the context of a cartel concerning public tenders (bid rigging).
The Council of State annulled the decision of the IAA in the part in which it had failed to recognise C.N.S.' full cooperation and had denied the maximum bonus benefit to the leniency applicant.
The judgment is noteworthy because it affirms important principles on leniency programmes. In particular, the Council of State emphasised the reward function of the benefits that are linked to cooperation and noted that "the strength of the mechanism [...] is evidently based on the effectiveness of the incentive granted to the company that decides to cooperate and is affected [...] by the 'certainty' of the cooperating company that it will be exempt from the penalty or that the same will be substantially reduced".
In addition, the judgment states that the reduction of the fine must be "in accordance with the principle of proportionality and the need to attribute a 'reward' to the collaborator, so as to act as a real incentive to the system of collaboration, determining its concrete profitability, to which the already mentioned systemic benefits for the entire apparatus of antitrust repression are connected".
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