The Trenitalia Bid Rigging Judgment and the Use of Criminal Evidence in Antitrust Cases

Abstract

A recent judgment of the Italian Council of State (No. 4211, published on 10 July 2018) has put a final word to a complex antitrust case,1 started by the Italian Competition Authority (‘ICA’) in February 2014 against several companies active in the supply of goods and services in the rail traction sector.2 The Council of State has upheld the decision of the ICA, which found that the parties engaged in bid rigging in breach of Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’) in a number of tenders called by Trenitalia, the leading Italian railway operator. The decision of the Council of State touches upon a number of thorny substantive and procedural issues, including the use by the ICA of evidence provided to it by public prosecutors in connection to a criminal case. This topic has become increasingly relevant in recent times, as confirmed by the fact that in January 2018 the ICA entered into specific protocols with the public prosecutors of Rome and Milan to regulate the process for exchanging documents and information and ease cooperation to promote the successful enforcement of both competition law and criminal law.