Italy: Italian Implementation Of The Directive 2014/104/EU On Antitrust Damages Actions

Last Updated: 26 January 2018
Article by Luca Toffoletti and Alessandro De Stefano

On January 19, 2017, the Italian Government has adopted the Legislative Decree No. 3/2017 ("Decree"), which has implemented in Italy the Directive No. 2014/104/UE dated November, 26, 2014, on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union ("Directive"). One year after its adoption, this article summarizes the main principles set forth by the Decree and examines their impact on the Italian private antitrust enforcement system resulting from the relevant case-law.

Standing

Any individual – i.e., any natural or legal person, as well as any entity devoid of legal personality – may claim damages for loss caused to him by an infringement of the European and/or Italian competition law provisions1, also by means of class actions2.

This principle is in line with the Italian legal system and case-law: the recognition of such a wide standing had already been set by the Italian Supreme Court in 20053, in the wake of ECJ's Courage judgement4. Moreover, class actions for damages (including damages caused by anti-competitive practices) – based on an opt-in model – have been introduced in Italy in 20105.

Compensatory nature of the antitrust damages

The victims of antitrust violations may claim a compensation, which shall (only) cover actual loss (damnum emergens), loss of profit (lucrum cessans), plus the payment of interests. Over-compensation or multiple compensation (e.g., treble damages as in the United States) are not admitted6.

This principle is in line with the Italian legal system and case-law, according to which the compensation shall place the injured person in the same position in which that person would have been, had the harmful event not been committed.

Disclosure of evidence by counterparty or third parties

The victims of antitrust infringements tipically face difficulties in supporting their claims with evidence, in particular in the case of secret cartels. In order to alleviate this task, the Decree provides that, upon reasoned request of a party, the courts may order the counterparty or third parties the disclosure of specified items of evidence or categories of evidence that are in their availibility, where (a) the requesting party has given sufficient evidence of the plausibility of its claim; (b) the disclosure is relevant to the action; (c) the disclosure is proportionate, balancing the interests of all parties concerned; (d) the request does not concern attorney-to-client correspondence7.

Should such items of evidence contain confidential information, the courts may adopt any measure to protect such confidential information from being disclosed during the litigation. Those measures include the possibility of redacting sensitive passages in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form.

The Italian system already has a provision allowing a similar disclosure: pursuant to Article 210 of the Italian Civil Procedure Code ("ICPC"), upon request of a party, the courts may order the counterparty or third parties the disclosure of specified documents or further means of proof, which are deemed to be relevant to the decision of the case. However, the Italian courts have used such power in very few cases in the context of antitrust damages actions.

The main innovation of the above-mentioned provision of the Decree with respect to Article 210 ICPC is the wider scope of the disclosure, which may concern not only specific documents or other means of proofs, but also entire "categories of evidence".

It may be reasonably expected that the provision of the Decree on disclosure encourages the courts to use such power, also in the light of the recent judgement of the Italian Supreme Court, according to which the courts should ex officio interpret extensively the provision on disclosure set forth in Article 210 ICPC8.

Discovery of evidence included in the file of a national antitrust authority ("NCA")

In a further attempt to stimulate private enforcement, the Decree sets forth that, in case of follow-on actions, the courts may order – upon reasoned and detailed request of a party – a NCAs to disclose certain documents included in its file9, provided that such order does not undermine the effectiveness of the public enforcement of competition law. In accordance with the Directive, the Decree further clarifies that:

  • leniency statements and settlement submissions10 cannot at any time be disclosed (black list);
  • (a) information prepared specifically for the proceedings of the NCA; (b) information that the NCA has drawn up and sent to the parties in the course of its proceedings; and (c) settlement submissions that have been withdrawn; may be disclosed only after the NCA has closed its proceedings (grey list);
  • any other evidence not falling within the above-mentioned categories may be disclosed at any time (white list).

The Italian system already has a provision allowing a similar disclosure: pursuant to Article 213 of the ICPC, the courts may request the Authority to provide documents, which are in its availibility and are relevant to the decision of the case. However, even this power has been rarely used by Italian judges.

Also in this case it may be reasonably expected that the provision of the Decree on disclosure of documents in the availability of a NCA may encourage the courts to use such power.

Effect of NCA's decisions

An infringement of competition law ascertained by a final decision of the Italian Competition Authority ("ICA"), which is no more appealable before a national court11, is deemed to be irrefutably established for the purposes of an action for damages brought before Italian courts. The binding effect of ICA's final decision covers the nature of the infringement as well as its material, personal, temporal and territorial scope, not also the causal relationship between the alleged harm and the infringement of competition law nor the existence of a damage12.

The provision introduces a new element into the Italian private enforcement system, which has never recognized a binding effect of ICA's findings in the context of damages actions. Indeed, according to the Supreme Court, ICA's findings have value as a preferred means of proof (prova privilegiata) of the infringement, meaning that they institute a presumption as to the existence of the infringement, which may be rebutted by the defendant only providing evidence that has not already been assessed by the ICA.

Moreover, the Decree provides that a final infringement decision adopted by a NCA of another Member State is in principle not binding on the Italian judges. In particular, such decision amounts to a means of proof as regards the nature of the infringement as well as its material, personal, temporal and territorial scope; however, its findings can be assessed by the judge as appropriate, along with any other evidence adduced by the parties13.

Limitation periods

The limitation period for damages actions is five years; it begins to run when the infringement ceases and the claimant knows – or can reasonably be expected to know – the behaviour constituting the infringement, the fact that the infringement caused the claimant harm, and the identity of the infringer14.

This general provision is in line with well-established Italian case-law15.

In order to facilitate follow-on actions, the Decree introduces an innovative provision, pursuant to which (a) limitation period is suspended if the ICA initiates a proceeding in respect of an infringement of competition law to which the action for damages relates, and (b) the suspension ends one year after the infringement decision has become final or after the proceeding is otherwise terminated16.

Joint and several liability

Where several undertakings infringe the competition rules jointly (e.g., in the case of a cartel), those co-infringers are jointly and severally liable for the entire harm caused by the infringement. As a consequence, each co-infringer is bound to compensate for the harm in full, the injured party has the right to require full compensation from any co-infringer, and each co-infringer has the right to obtain a contribution from other co-infringers if it has paid more compensation than its share.

The Decree sets forth the following two exceptions to the above-mentioned joint and several liability principle:

  • where the infringer is a small or medium-sized enterprise ("SME"), the infringer is liable only to its own direct and indirect purchasers where: (a) its market share in the relevant market was below 5% during the infringement, and (b) the application of the rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value. However, such exception is not applicabile, where: (a) the injuried parties cannot obtain full compensation from the other infringers; (b) the SME has led the infringement or has coerced other undertakings to participate therein; (c) the SME has previously been found to have infringed competition law17;
  • any immunity recipient is jointly and severally liable (a) to its direct or indirect purchasers or providers, and (b) to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement. In any case, the amount of contribution of the co-infringer which has been granted immunity from fines under a leniency programme cannot exceed the amount of the harm it caused to its own direct or indirect purchasers o providers18.

The two exceptions introduce a relevant and innovative derogation to the general principle of joint and several liability provided by Article 2055 of the Italian Civil Code, pursuant to which "if the act causing damage can be attributed to more than one person, all are jointly and severally liable for the damages. The person who has compensated for the damage has recourse against each of the others in proportion to the degree of fault of each and to the consequences arising therefrom. In case of doubt, the degree of fault attributable to each is presumed to be equal".

Passing-on of the overcharge

The Decree introduces detailed rules concerning the so-called passing-on of the overcharge, i.e., the situation in which harm resulting from the price difference between what was actually paid and what would otherwise have been paid in the absence of the infringement has been, entirely or partially, "passed" from the injured party to its own purchasers. In such case, the loss which has been passed on no longer constitutes harm for which the party that passed it on needs to be compensated (nor is such party anymore entitled to compensation in accordance with the strict compensatory regime of the antitrust damages chosen by the Directive and transposed by the Decree).

The Decree covers:

  • the passing-on defence, whereby the defendant can invoke as a defence against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement of competition law. The burden of proving that the overcharge was passed on shall be on the defendant19;
  • the passing-on offence, whereby any indirect purchaser can claim and obtain compensation, when the overcharge imposed by the infringer of competition law is passed on by its direct counterparty, by raising its own prices20. The burden of proving the existence and scope of such a passing-on shall rest with the claimant; however, there is a rebuttable presumption of passing-on where the claimants has shown that: (a) the defendant has committed an infringement of competition law; (b) the infringement has resulted in an overcharge for the direct purchaser of the defendant; and (c) the indirect purchaser has purchased the goods or services that were the object of the infringement, or has purchased goods or services derived from or containing them.

To date, the passing-on was not expressly recognized in the Italian legal system; however, in some cases21, the Italian judges have applied the passing-on principles on the basis of the general civil liability principles, pursuant to which a claimant may only seek compensation for damages it actually suffered.

Presumption of damages in case of cartels

The Decree introduces a rebuttable presumption of damages in case of cartels22. This innovative presumption, which does not cover the concrete amount of harm, is limited to cartels, given their secret nature, which increases the information asymmetry and makes it more difficult for claimants to obtain the evidence necessary to prove the harm.

Jurisdiction

The Decree has concentrated the jurisdiction for handling antitrust damages actions on the Tribunals of Rome, Milan and Naples23.

Status of the transposition of the Directive in the Member States

The deadline for transposing the Directive into Member States' legal systems expired on December 27, 2016. The Directive has been fully transposed by almost all member States, with the exception of Bulgaria, Greece, and Portugal24.

Footnotes

[1] Article 2(1)(c) of the Decree, which implements Article 3(1) of the Directive.

[2] Article 1(1) of the Decree.

[3] See judgement No. 2207/2005.

[4] Judgment of the ECJ of September 20, 2001, Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others, Case C-453/99.

[5] See Article 140-bis of Legislative Decree No. 206/2005 (Consumer Code).

[6] Article 1(2) of the Decree, which implements Article 3(2-3) of the Directive.

[7] Article 3 of the Decree, which implements Article 5 of the Directive.

[8] See judgement No. 11564/2015.

[9] Article 4 of the Decree, which implements Article 6 of the Directive.

[10] However, to the date the settlement procedure has not been introduced in Italy.

[11] ICA's decisions are reviewed by the administrative courts, i.e., the TAR Lazio, at first instance, and the Consiglio di Stato, at second instance.

[12] Article 7(1) of the Decree, which implements Article 9(1) of the Directive.

[13] Article 7(2) of the Decree, which implements Article 9(2) of the Directive.

[14] Article 8(1) of the Decree, which implements Article 10(2-3) of the Directive.

[15] See Supreme Court, judgement No. 2305/2007.

[16] Article 8(2) of the Decree, which implements Article 10(4) of the Directive.

[17] Article 9(1-2) of the Decree, which implements Article 11(2-3) of the Directive.

[18] Article 9(3-5) of the Decree, which implements Article 11(4-5) of the Directive.

[19] Article 11 of the Decree, which implements Article 13 of the Directive.

[20] Article 12 of the Decree, which implements Article 14 of the Directive.

[21] Court of Appeal Turin, judgement dated 6.7.2000; Court of Appeal Cagliari, judgement dated 23.1.1999.

[22] Article 14(2) of the Decree, which implements Article 17(2) of the Directive.

[23] Article 18 of the Decree.

[24] Source: http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions