the Council of State establishes that Large the Navi Veloci, Moby, Marinvest and SNAV have not agreed some understanding on the prices



The Council of State, with deposited sentence friday that we publish below, has confirmed the decision of the REGIONAL ADMINISTRATIVE COURT of the Latium that in May 2014 had received the resources introduced from the Great companies of navigation Navi Veloci (GNV), Moby, Marinvest and SNAV against the decision with which the Guarantor Authority for competition and Market (AGCM) it had endorsed for a presumed understanding on the prices of practiced tickets the customers ( on June 14, 2013 and 8 May 2014).

The president and managing director of GNV, Roberto Martinoli, have emphasized that such result is "extremely satisfactory" - "the sentence of the Council of State - has observed - definitively closes an event that has seen us unjustly accused to have adopted illicit behaviors; our company - it has emphasized Martinoli - has always churns and continues to act according to criteria of absolute transparency and with maximum independence in the determination of own business policy and tariff". GNV has restated to have "always defined its business strategies in absolute autonomy" and of being "been able to renew themselves and to strengthen own activity in spite of negative the economic conjuncture, consolidating of the national lines and increasing own presence on the international markets".

N. 04123/2015REG.PROV.COLL.
N. 07946/2014 REG.RIC.
N. 07948/2014 REG.RIC.



ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Council of State
in jurisdictional center (Section Sixth)

it has pronounced anticipates

SENTENCE

on the resource number of general registry 7946 of 2014, proposed they give:

Guarantor authority of the Competition and Market - AGCM, in person of the President in charge, represented and defended from the general Legal profession of the State, domiciliataria for law, in Rome, via of the Portugueses, 12;

against

Large the Navi Veloci s.p.a., in person of the legal representative pro tempore, represented and defended from lawyers Stefano Grassani and Fabio Cintioli, with address which elected near the study of this last one, in Rome, via Vittoria Colonna 32;

Marinvest s.r.l and SNAV s.p.a., in person of the respective lawyers representatives pro tempore, represented and defenses from lawyers Fabio Cintioli, Donato Bruno and Salvatore Ravenna, with address which elected near the study of first, in Rome, via Vittoria Colonna 32;

regarding

Altroconsumo - independent Association of consumers, in person of the legal representative pro tempore, represented and defended from lawyers Paolo Martinello, Giorgio Afferni, Andrea Mozzati and Francesco Paoletti, with address which elected near the study of this last one, in Rome, tree-lined avenue Marshal Pilsudski, 118;

Forship s.p.a., constituted in judgment in does not anticipate degree;

on the resource number of general registry 7948 of 2014, proposed they give:

against

Moby s.p.a., in person of the legal representative pro tempore, represented and defended from lawyers Beniamino Caravita Di Toritto, Beniamino Carnevale and Claudio Tesauro, with address which elected near the study of first, in Rome, via of Pinciana Door, 6;

regarding

Altroconsumo - independent Association of consumers, in person of the legal representative pro tempore, represented and defended from lawyers Francesco Paoletti, Paolo Martinello, Giorgio Afferni and Andrea Mozzati, with address which elected near the study of first, in Rome, tree-lined avenue Marshal Pilsudski, 118;

Forship s.p.a., independent Region of the Sardinia, Codacons - Coordination of the associations for the defense of the atmosphere and the users and the consumers, constituted in judgment in does not anticipate degree;

for the reform

as for the resource n. 7946 of 2014:

of the sentence of the T.a.r. Latium - Rome, Section I, n. 04730/2014, been profitable between the parts and concerning: irrogazione agreed practical pecuniary endorsement for anti-competitive;

as for the resource n. 7948 of 2014:

of the sentence of the T.a.r. Latium - Rome, Section I, n. 04731/2014, been profitable between the parts and concerning: irrogazione agreed practical pecuniary endorsement for anti-competitive;

Seen the resources in appeal and relative the attached ones;

Seen the certificates of incorporation in judgment of the respective named parts;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter, in the public audience of the day 14 April 2015, the Cons. Bernhard Lageder and hearings, for the parts, the Kind lawyer of the State and lawyers Grassani, Cintioli, Paoletti and Afferni;

Considered and considered in fact and right how much follows.

FACT and RIGHT

1. With the two sentences in epigraph, the T.a.r for the Latium received the resources n. 6319 of 2013, n. 7943 of 2013, n. 9209 of 2013 and n. 9210 of 2013, proposed respective by Moby s.p.a., the Large ones the Navi Veloci s.p.a. (GNV), adverse Marinvest s.p.a and SNAV s.p.a the provision n. 24405 of the 11 june 2013, with which the guarantor Authority of the competition and the market - AGCM had inflicted to the recurrent pecuniary endorsements of euro 5.462.310, 00 (Moby), of euro 2.370.795, 00 (GNV), of euro 231,765, 00 (SNAV) and of euro 42,575, 00 (Marinvest), former articles. 15 and 31 l. 10 October 1990, n. 287.

The AGCM, to the outcome of the procedimentale preliminary investigation, had considered assessed that the recurrent enterprises, in the period september 2010 - september the 2011 (SNAV, until May 2011, when the same one had stopped to operate on the Civitavecchia-Olbia route), had placed in being an understanding in the agreed form of a practical one, consisting in the parallel generalized and meaningful increase of the prices of the services of transposed marine passengers, with or without vehicles rubberized to the continuation, on a series of routes from and for the Sardinia (mainly, on the routes Civitavecchia-Olbia, Genoa-Olbia and Torres Genoa-Port), with reference to the summery season 2011, characterized as illicit anti-competitive, as not justifiable one with economic explanations alternatives if with the concertazione between the recurrent enterprises, let alone lesiva of art. the 101 TFUE, since suitable not to shrink the commerce between the Member States, constituting the marine connections for the Sardinia an important part of the marine transport in Italy.

Adìto the T.a.r has founded the pronunce of acceptation on the following motivazionali reliefs (identical in the two sentences):

- it found that, which only incontestable data, could be assumed that in the 2011 rates of the ferries for the Sardinia they had grown in much sensitive measure, for the maximum part of the operators: in the sense that the user, let alone the contiguous subjects to it, as the associations of consumers and the Sardinia Region, had generally perceived the exceeding increase as the increment anniversary reasonably attended in that time for similar performances;

- however, to light of the adopted methodological criterion from the AGCM, it would be impossible to know in detail the exact entity of such increases - for companies, drafts, periods of the year and types of travel -, being the AGCM rerun to the parameter of the unitary medium revenue for passenger (dividend the totality of the revenues for the number of the passengers), constituted a mere statistical indicator of the real prices applied in relation to the variegated type of the offered services (single ticket, ticket family, solo fleeting transport, fleeting transport + automobile, solo passage without cabin, passage with cabin, etc), strongly diversified within a same company;

- to the aim to assess the existence of a pre-emptive coordination between the economic operators, that they supplied the transport services in question, it was necessary, in fact, to ascertain and to know the real tariff increases, with the correspondences, also temporal, that is the divergences, to the aim to confirm or less the deduction concertazione, while the Authority, in the appealled provision, had not succeeded to fix concrete dynamics of the increase of the single prices, for which reassuring elements lacked “in order to assert that all the operators have increased the rates homogeneously, with uniform addresses and synchronisms you suspect” (v. so, exactly, the appealled sentences);

- it had, moreover, to be considered well-known that the computerized management of the reservations allowed 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 oscillated cospicuamente), and to adapt itself flexible to the characteristics of the market in general terms, as well as to the question for determining covered and single travel;

- on the other hand, the prices were () pacifically conoscibili from all and it could reasonably be presumed that every company monitored those of the others constantly, that, in itself, it did not introduce illiceità profiles;

- he was, then, reasonable to consider that one of the societies of navigation interested (all in loss in the interest period) had decided, in full autonomy and, therefore, without advance concertazione, to start a first series of increases, and to these they were followed, in pairs autonomy, those of the other companies that had learned of first and, to this point, had considered more convenient not to continue to practice not gainful prices of the costs of the service;

- therefore, contrarily to the task of the Authority, the simple increase of the prices was not suitable to demonstrate, in itself, the existence of a pre-emptive understanding, in the sense that “this is not that is 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 explain” (v otherwise. so, exactly, the appealled sentences);

- in fact, the recurrent enterprises - aloof profiles relative specific absolvers to the single positions (which, as for the position of Marinvest, the absence of any operating activity, in quality of holding of the group, and, as for the position of SNAV, the escape, at the beginning of 2011, from the routes from and for the Sardinia) -, in order to justify the increment of the prices, had indicated, in particular, the losses of management (in the 2010 GNV quickly had losses for 37,9 million euros) and the sensitive increase of the cost for the fuel, against a decrease of the question of marine transport towards Sardinia;

- the indicated exculpatory elements from the recurrent ones (which, moreover, it did not weigh on the relative burden of allegation and test) had to be considered consisting, so to be profitable likely, according to reasonableness, the individual decision to increase the rates, also without pre-emptive agreements, whose existence was not proven, difettando, in particular, the test that the increases were disproportionate to the measure of the losses, while the affirmation of the Authority, second which the increase of the prices, if not agreed before, never would have been would be decided by the single operator, as could only have determined ulterior losses, constituted an arguable argument decidedly;

- mainly, such argument did 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, that it has remained confirmed, second recognized how much from the same Authority, for Forship, which is not endorsed also having increased the prices, as the same one it would have carried out a role of follower of the policies of price of the competitors, neither the recalled argument of the Authority considered that all the navigation societies put into effect a constant monitoring of the prices of the other companies, so that nothing would have prevented to reconsider the arranged increases, if the competitors had not adopted the same politics;

- to this the circumstance joined that, own in the course of 2011, would have had to be definitively privatized the Tirrenia society, which for very many years had exercised the marine transport, also with the Sardinia, to contained prices, not by now reasonably more practicable, sicché a fundamental factor of calmieramento of the prices had failed, with the consequence that, for a back, as asserted from the Region Sardinia, “the collusivo risk, species with regards to the price fixing is increased in exponential way”, but for other back and under other visual angle, the virtual one disappeared of a competitor, that it had until then tax a calmieramento of the field, reaching then, in short, to the failure, could have induced each of the interested companies to increase the rates independently;

- neither the Authority had succeeded to try exogenous elements of agreements elapsed between the parts with regard to relative the tariff increase to the summery season of 2011, lacking any correlative direct reply or presumptive it is with regard to the content of the relations elapsed between the recurrent ones and the other societies, that they would have constituted the common enterprise Italian Company of Navigation (C.I.N.) for the acquisition of Tirrenia, is with regard to the content of the agreements of elapsed tails sharing, in the spring of 2011, between Moby and GNV, than they did not have intrinsically illicit valence, constituting instead a precise burden of the Authority to verify case by chance, if such legal outlines could, or less, to assume collusiva valence;

- AGCM not had acquitted to relative burden probative, not being be offered elements, which confirmed existence of practical agreed, as the mentioned agreements, to in itself lawful specific content, did not presuppose practical a tariff one shared between the societies that had concluded them, to prescind from the relief that the same ones regarded alone two of the subjects then endorsed.

The T.a.r received, conclusive, the resource for deficiency of test of the anti-competitive agreed practical allegated one, cancelling the appealled sanzionatorio provision and declaring absorbed the remaining reasons.

2. Adverse both the sentences interposed appeal the Authority, deducing the following reasons (from each other identical in the two actions of impugnation):

a) an erroneous exclusion of the attainment of the test in order to the existence of a parallelism of the tariff policies adopted between the parts of the understanding for the routes Civitavecchia-Olbia/Golfo Aranci, Genoa-Olbia and Torres Genoa-Port, let alone the circolarità of the reasoning of the sentence, having the T.a.r considered erroneously that it was impossible to determine the entity of the increases, while, in the species, the increases were tried punctually, neither to the aims of integration of illicit the competitive necessary era the identity of the increments of price between all the operators: in fact, for a back, e-mails and reports found again it is near Moby is near GNV/SNAV would prove that the competitive enterprises had practiced political of price until summery season 2011, and that from that moment their strategies only had quickly an abrupt rise in controtendenza regarding the year precedence (of beyond 70% on the Civitavecchia-Olbia routes and Torres Genoa-Port, and of beyond 40% on the Genoa-Olbia route), to the point of fearing a reduction of the number of the passengers (Moby) or to suggest the nascondimento of the relative data to increase (GNV/SNAV) (doc. 18 and 29), and, for other back, the Authority had applied to a indicator (unitary medium revenue) suitable to verify the medium course of the offers and therefore the tariff strategies in practice practiced by the operators (in the species, connoted from a homogenous increase on the specified routes over), also in the presence of a market characterized from a marked differentiation of the prices daily practiced, being own the waited for revenue the variable one on which the competition strategies were played;

b) the erroneous application of the criteria that preside to the probative and consequent regime the erroneous exclusion of the test of the concertazione, deducing, with regard to, the following profiles of errores in iudicando:

- “lacked understanding by the Regional Administrative Court the iter logical-probative”, having the appellant Authority, in the appealled provision, acquitted independently and scrupulously to the burden to demonstrate that the found ones lead parallels were not riconducibili to explanations able alternatives to characterize the same conducts as rational and independent entrepreneurial choices, and having the same one, in particular, demonstrated that the lead mentioned ones could not be justified neither from the insufficient elasticity of the question, neither from the transparency of the market, neither from the increment of the cost of the fuel, neither, at last, from the losses endured from the operators, so supplying the logical-economic test of the illicit one, in adhesion to the criteria elaborated from consolidated jurisprudential, national and communitarian guideline, and at all placing the onus of proof of the endogenous indicators of the practical one agreed at the expense of the enterprises;

- the intrinsic contraddittorietà of the motivations of the named sentences, whereby, for a back, asserted that the separated possibility of the riconduzione of the increases of agreed price to a practical one could not be considered sufficient, under the probative profile, to confirm the accusatory hypothesis, and, for other back, they assumed that separated plausibility of the explanations supplied from the enterprises would have been sufficient to assert of the liceità;

- the perplexity of the affirmation, contained in the appealled sentences, second which the “College does not want so to assert that sure for the rates not a practical one was agreed (…) but only that the appealled provision and the actions instructors of it does not attest the existence”, indicative of the analysis absence and istruttorio deepening and consequent uncertainty of the conclusions of the T.a.r.;

- the omitted one adapted to valorization of the data acquired instructors from the Authority - suitable to demonstrate to the absence of explanations alternatives of the conducts parallels, not otherwise explicable that with the advance concertazione between the concurrent enterprises - through the deepened analysis of the endogenous elements of the elasticity of the question, the transparency of the market, the increase of the fuel cost and the connoting losses of exercise the situation economic-financial institution of the recurrent original enterprises;

- the omitted one adapted to valorization of the data acquired instructors from the Authority with regard to the subsistence of contacts characterized between the enterprises, being able itself some inferring that these last ones had connected own tariff policies (in particular valuing documents 18, 24, 30, 21, 31 and 39), to ulterior exogenous indiziaria confirmation of the reconstruction of the anti-competitive fattispecie, already in itself demonstrated from the enunciated endogenous elements proving the necessary riconducibilità of the conducts parallels to a concertazione between the parts.

The appellant Administration asked therefore, in reform of the named sentences, the reiezione of the rerun adversaries first degree.

3. In both judgments of appeal the recurrent original respective societies were formed in judgment, contesting the fondatezza of the appeals and asking of the reiezione, let alone reproposing the absorbed reasons express first degree.

One was formed, also, in judgment, the association of the Altroconsumo consumers, joining to the appeals proposed from the Authority and asking of the acceptation.

4. To the public audience on April 14, 2015 the cause is withheld in decision.

5. Although the two resources in appeal are proposed adverse two distinguished sentences, ravvisa opportune to get ready of the reunion according to a discourse and combined decision, for reasons of objective and partially subjective connection.

In the merit, the appeal reasons, from each other connected and to examine jointly, are groundless.

5.1. Original recurrent and the today's ones named (Moby, GNV, SNAV and Marinvest), in the appealled inhibiting and sanzionatorio provision, are considered guilty of the violation of art. the 101 TFUE in order to have place in being a suitable understanding to alter competitive dynamics in the market of the services of transposed marine passengers, with or without vehicles rubberized to the continuation, on the routes Civitavecchia-Olbia, Genoa-Olbia and Torres Genoa-Port, consisting in the practical one agreed of the parallel generalized increase and meaningful of the prices for summery season 2011, than, second the task of the Authority, would not find justifications alternatives to that of the concertazione.

5.2. Observe yourself, online by right, than, for how much it interests here, art. the 101 TFUE, prohibits “(…) 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 in particular those consisting in:

a) to indirectly fix directly or the sale or purchase prices that is other conditions of transaction; (…)”.

While the fattispecie of the agreement resorts, in case the enterprises have expressed the their common will to behave on the market in a determined way, the practical one agreed corresponds to a form of coordination between enterprises that, without being pushed until the performance of a real agreement, replaces, in aware way, an expressed collaboration between was about to them to stave off to the risks of the competition.

The criteria of the coordination and the collaboration, that they allow to define such notion, go to light intended of the principles in competition matter, second which every economic operator must independently determine the conduct that he intends to follow on the market. Also not excluding the aforesaid requirement of autonomy the right of the economic operators to react cleverly to the famous or presumed behavior of the competitors, it prohibits rigorously but that between the operators direct or indirect contacts take place having for object or effect to create competition conditions not correspondents to the normal conditions of the market.

The restrictive understanding of the agreed competition by means of practical demands behaviors more enterprises, uniforms and parallels, that they constitute I yield of concertazione and not of unilateral initiatives, sicché in the practical one agreed lack, or however he is not traceable by the investigator, an expressed agreement, that he is easily comprehensible, where considers that the operators of the market, where they intend to place in being an anti-competitive practice, and being aware of its illiceità, will try with every means to hide it, avoiding written agreements or comes to an agreement oral expressed and resorting, instead, to mutual signs you turn to reach to a concertazione to all purposes and effects.

The jurisprudence, aware of the rarity of the acquisition of a full test, considers that the agreed practical test of, as well as the documentary one, can also be indiziaria, provided that the indications are serious, specify and concordant.

In the practical one agreed the existence of the subjective element of the concertazione it must therefore be deduced in indiziaria way from objective elements, which:

- the duration, the uniformity and parallelism of the behaviors;

- the existence of encounters between the enterprises;

- the engagements, generic and though apparently not univocal, of common strategies and policies;

- the informative signs and the mutual ones;

- the practical success of the behaviors, than could not derive from initiatives unilateral, but from conducts only concerted.

The communitarian and national jurisprudence distinguishes between natural parallelism and parallelism skillfully induced from anti-competitive understandings, of which the first fattispecie to demonstrate on the base of endogenous evidences, that is connected to the intrinsic strangeness of the conducts assessed and to the lack of explanations alternatives, in the sense that, a logic of I confront competitive, the behavior of the enterprises would have been sure or at least reasonably various from that found, and the second one on the base of exogenous evidences, that is of external replies about the participation of an illicit understanding to beyond the physiological strangeness of the conduct as such.

The difference between the two fattispecie and correlative types of probative elements - endogenous and, respective exogenous - is reflected on the subject, on which it falls back the onus of proof: in the first case, the test of the irrationality of the conducts weighs on the Authority, while, in according to case, the contrary probative burden is moved in head to the enterprise.

In particular, in case, against the simple ascertainment of a parallelism of behaviors on the market, the reasoning of the Authority is founded on the supposition that the conducts placed made up of the accusatory hypothesis dispute object cannot be explained otherwise if not with a concertazione between the enterprises, to these last ones enough to demonstrate reasonable circumstances that they place under a various light the facts assessed from the Authority and that they allow, so, of giving a various explanation of the facts regarding that received in the appealled provision.

In case, instead, the test of the concertazione it is not based on the simple ascertainment of a parallelism of behaviors, but from the preliminary investigation it emerges that the practical ones can be are yield of a concertazione and of an exchange of information in practice between the enterprises, in relation to which there are reasonable indications of practical agreed an anti-competitive one, it weighs on the enterprises the burden to supply a various lawful explanation of their conducts and their contacts (on the reconstruction of the agreed practical fattispecie of the anti-competitive ones, under the substantial and probative profile, v., for all, Cons. St., Sez. YOU, 13 May 2011, n. 2925, with wide jurisprudential callbacks, communitarian and national).

5.3. If of species, the appealled provision - moreover, informed to a methodological approach that appears from beginning to end vitiated from the adoption, as parameter of appraisal of the conducts of tariff increment, of the unitary medium revenue, obtained, dividend the revenues totals for the number of the transported passengers (that is, of a mere statistical data proceeds ex post from the launches real prices applied from a same company), rather than of the corrected criterion, supporter with the debited anti-competitive fattispecie to the today's ones named, of a concrete and punctual analysis of the real prices applied from the single companies to compare, for drafts, single moments of the season and types of travel and offered services - I found on the reply of allegated a meaningful parallel increase of the prices (according to the mentioned parameter of the unitary medium revenue), in the measures of beyond 65%, by the detentrici enterprises of navigation of important market shares, operating on the routes Civitavecchia-Olbia, Genoa-Olbia and Torres Genoa-Port, for the summery season 2011 (june - september 2011); parallel rise of prices that, second the prospettazione of the Authority, “turns out to be I yield of an understanding, in the agreed form of a practical one, than it does not find justifications alternatives if not concertazione” (v. so, exactly point 159 of the appealled provision) and is time to alter competitive dynamics in the markets of the fleeting services of transport on the routes in question and, in particular, to increase the relative prices in the mentioned summery season in prejudice of the consumers.

5.4. For how much it concerns the qualified contacts elapsed between the Moby enterprises, GNV and SNAV in the within of the procedure of privatization of Tirrenia (with under way contest in September 2010), to which the mentioned enterprises they had participated (of which last the two through the controlling Marinvest) through the constitution of common society CIN, let alone those elapsed between enterprises Moby and GNV, between which an agreement of tails sharing on the Civitavecchia-Olbia route and a commercial agreement on the route is taken part Torres Genoa-Port, is observed that, for a back, contained draft of relationships and agreements to and specific and delimited objects, of for lawful himself, while, for other back, indiziari elements are not emerged precise, serious and concordant around the eventual one concertazione of the relative tariff business strategy to summery season 2011 or eventual a correlative sensitive exchange of information realizes, being the which invoked documents in case of necessity from the completely equivocal Authority and compatible with the specific object of the lawful contacts elapsed between the enterprises, to prescind of the relief that the test lacks the chronological coincidence with the phase of fixation of the prices for summery season 2011 (so, eg., the commercial agreements between Moby and GNV are taken part in a moment in which the relative rates to the 2011 already were defined by the single companies).

Moreover, it is the same Authority to specify, in the appealled provision, than “Not draft of having encounters in itself restrictive valence, but of suitable occasions of contact to constitute ulterior elements to agreed support of the practical one”, than “the single contacts they only represent only an indication of the fact that, in the within of common enterprise CIN, Moby and GNV/SNAV has discussed about tariff policies for the next seasons, comprised that there 2011”, and that “such agreements are not estimated as restrictive of the competition in itself in the within of anticipate procedure, but as occasion of contact between Parts” (v. points 155, 156 and 158 of the provision), without, however, being able to supply univocal indiziari elements about the finalizzazione of the contacts in question to the sensitive exchange of information or the concertazione of the prices for summery season 2011, that is to purpose strangers to the procedure of privatization of Tirrenia or, respective to the mentioned commercial agreements.

5.5. Place therefore that the sanzionatorio provision is based, in the final analysis on the simple ascertainment of a parallelism of behaviors - moreover, connoted from a not homogenous increase of the prices by the several enterprises -, considers the College that, in this case, the explanation of parallelism of behaviors based on the concertazione is not only the reasonable one, and that the Authority has not been able to exceed the explanations advanced alternatives with regard to from the recurrent original enterprises - whose effects are, moreover, to estimate not in atomistico way, but in unitary and contextual way -, rested on an economic analysis that carries to the conclusion that i found tariff increases they are riconducibili to independent and independent choices of the operating enterprises of navigation on the routes in question.

5.5.1. In the first instance, the ouster of the Forship from the number of the endorsed operators is index of the intrinsic contraddittorietà of the appealled sanzionatorio provision, be a matter itself of active enterprise on the Livorno-Olbia route with a market share around 50%, on one of the more important markets and gainful between that object of assessment, which had practiced tariff politics to the rise in all assimilable to the put tariff decisions in existence from the operators endorsed, in even greater measure, moreover announcing in order before the increase of the prices on own website (in 11 date October 2010, keeps on little days of distance by Moby).

The Authority has not been able to demonstrate in convincing way the exclusion of the company in question from the perimeter of the endorsed operators, characterizing it, in apodittica way, as follower (id est, enterprise substantially weak person in the competences of innovation and produced planning of or the offered, tending service, in order to tackle to such weakness, to adapt and to imitate produced or the services offered from the smaller enterprises leader), or as operator on the routes in question; circumstances, that they turn out instead refutation from the tempistiche of the rises operated and from the important market shares stopped from the Forship on all the routes involved in the procedimentale preliminary investigation, while insignificant, and however not sufficiently tried is the circumstance that would be be a matter of company with “typically international” customers.

Therefore, as correctly considered from the T.a.r., the acquittal of the Forship constitutes, in itself, the test of the existence of explanations alternatives to the concertazione, demonstrating that the contested increases of the prices, lungi from being able to be led back to the only possible explanation of a collusivo parallelism, are reasonably riconducibili to independent and rational independent and unilateral choices of the several operators.

Substantially analogous considerations prevail with regard to the lacked inclusion Tirrenia between the subject addressees of the sanzionatorio procedure, although also such operator, although the subsidies publics of which it enjoyed, have considered necessary to increase the rates in summery season 2011 (even if in inferior measure to that of the today's ones named; v. the signallings having to object the tariff increases of Tirrenia, turning out from the procedimentale istruttorio issue).

5.5.2. In the second place, it can be considered that the increase of the prices operated from the several companies on the routes in question constituted a rational answer to the sensitive increases of the fuel in period 2009-2011. In fact, in the mentioned period, the values of reference of the main used types of fuel in the marine transport (called bunker) quickly have an increase of the 26-29% from 2009 to 2010 and of the 38-39% from 2010 to 2011 (v. table 22 to p. 28 of the appealled provision).

Although the fuel in general terms constitutes only one of the cost factors of the navigation enterprises, affecting less of 50% (mainly, in the measure of the 40-45%) on the total of the costs, and also involving, therefore, also an eventual entire translation the prices an increment tendentially inferior percentage to the increase of the cost of such productive factor, in period 2009-2011 is, however, assisted to an increase of about 70% of the cost of the bunker, than, already in itself, it would have justified a consisting increase of the final price.

If the increases of other voices of cost join (which, eg., for GNV: the voice budgetary ‘enjoyment of assets of third party’, increased from euro 20 million to euro 38 million; the relative voice to the costs of the services, increased from euro 106 million to euro 141 million; or the applied harbour burdens from the Sardinia Region, more than doubled), or the combination with other circumstances of sign negative (which, eg., for Moby, the reduction of the revenues for 16,5 million in period 2007-2010; or, well-known the serious general economic crisis), the percentage of increase of the rates applied in summery season 2011 finds its independent, reasonable explanation in with of a series of economic factors negatives incidents on the operating enterprises in the field of marine navigation.

5.5.3. In third place, the substantial chronological coincidence of the increase of the prices operated from the companies in question for summery season 2011 can be considered a direct consequence of the great transparency of the market of the field under investigation - connoted from the circumstance, immanent to the nature of the offered services, that the prices applied from the several operators are, pacifically, conoscibili from anyone in real times, allowing of a constant monitoring -, and it cannot therefore be considered artificial. In fact, every producer is at liberty to modify as it wants own prices and it can hold account, to such fine, of the behavior of its competitors, provided with high degree of prevedibilità in a market connoted from an elevated degree of transparency.

It is necessary, on the point, to add that parallelism of the prices and their course find, if of species, a satisfactory explanation also in the oligopolistiche tendencies of the market, emerged in way precipuo as a result of the privatization of Tirrenia, strongly subsidized from the public sector, than before acted as factor of calmieramento of the prices.

In truth, in a market oligopolistico and, at the same time, transparent, which that under investigation, no enterprise will proceed to competition actions without to have preventively studied the probable reactions of its competitors, and in a such structure of market, when an operator carries out a general increase of the prices, the other operators stretch naturaliter to put into effect analogous tariff policies in rise, species in a situation connoted from a generalized lievitazione of the several factors of cost and from a decrease of profit.

It considers, with regard to, the College that the creation of a founded situation of oligopolistico balance on progressive adjustments of the behaviors of the operators of the market, in concomitanza with a series of factors that return the decisions unilateral of each riconducibili enterprise to economic imperatives of objective character, is not, in itself, qualificabile sub species of practice agreed prohibited according to art. the 101 TFUE, to pain to ex post resolve the sanzionatoria fattispecie in a noticeable situation through the assessment of the objective effects produced from the lawful independent conducts of the operators of the market, which cleared from any element of guilt, only determining the presence also of this last member the full illiceità of an anti-competitive conduct according to the communitarian and national discipline, that it can give rise to the application of pecuniary endorsements.

5.5.4. To light of the above-referenced results of the economic analysis, it must be stated that, in this case, the explanation of parallelism of behaviors based on the concertazione is not only the reasonable one, with the consequent inconfigurabilità of the contested anti-competitive fattispecie to the today's ones named with the appealled provision, not even under the profile of a reconstructive approach of endogenous type.

5.6. For the exposed reasons, the appeals are from rejecting, with consequent confirmation of the appealled sentences and absorption of every other issue, by now insignificant to the decisive aims.

6. Taken into consideration every connoting circumstance controversy, ravvisano anticipates the law foundations in order to declare the expenses of anticipates judgment degree entirely compensated between all the parts.

P.Q.M.

The Council of State in jurisdictional center (Section Sixth), definitively pronouncing on the appeals, as in epigraph proposed and from each other reunited (resorted n. 7946 of 2014 and n. 7948 of 2014), reject them and, for the effect, named confirmation the sentence; it declares the expenses of anticipates judgment degree entirely compensated between all the parts.

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

So decided in Rome, the Council Chamber of the day 14 April 2015, with the participation of the magistrates:

Stefano Baccarini, President

Sergio De Felice, Councilman

Giulio Castriota Scanderbeg, Councilman

Roberta Vigotti, Councilman

Bernhard Lageder, Councilman, Drafter

THE DRAFTER

THE PRESIDENT

DEPOSITED IN SECRETARIAT
The 04/09/2015
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)