Comparative Guides

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4. Results: Answers
Cartels
1.
Legal and enforcement framework
1.1
Which legislative and regulatory provisions apply to cartels in your jurisdiction?
Italy

Answer ... The relevant provisions are Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 2 of Italian Law 287/90. The latter largely reflects the provisions of Article 101(1) TFEU and prohibits agreements between undertakings, concerted practices or decisions by associations of undertakings that have as their object or effect the prevention, restriction or distortion of competition within the national market, or a substantial part thereof, including conduct such as price fixing, production limitation, market sharing and discrimination among trading partners. The main difference from the corresponding EU provision is the absence of the requirement for an “effect on trade between Member States” - the jurisdictional standard which defines the boundary between conduct that is subject to EU law and conduct that is governed solely by domestic law.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
1.2
Do any special regimes apply to cartels in specific sectors?
Italy

Answer ... Under Article 8(2) of Law 287/1990, national competition provisions do not apply to undertakings entrusted with the operation of services of general economic interest or that operate on the market in a monopoly situation, insofar as this is indispensable to perform the specific tasks assigned to them.

Also, according to Article 20(5-bis) of Law 287/90, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) may, at the request of the Bank of Italy, authorise an agreement in derogation of the prohibition set out in Article 2 in the interests of the efficiency of the payments system, for a limited period and taking due account of the criteria set out in Article 4(1).

Recently adopted legislation on public procurement may affect the possibility for undertakings found liable for bid rigging by the Italian Competition Authority to participate in public procurement procedures. This is by virtue of Article 80(5)(c) of Legislative Decree 50/2016, containing the new Italian Public Procurement Code, and its implementing guidelines. Article 80(5)(c) provides that an economic operator may be excluded if, among other things, the contracting authority can demonstrate by appropriate means that it is guilty of serious professional misconduct which renders its integrity or reliability questionable. Guidelines 6/2017, adopted by the Anti-corruption Authority (Autorità Nazionale Anticorruzione) to clarify the scope of application of Article 80(5)(c), include as an instance of serious professional misconduct (and hence as a potential ground for exclusion) the conclusion of anti-competitive agreements. In addition, in assessing the integrity or reliability of an economic operator, the contracting authority must take into account any infringement decisions of the Italian Competition Authority regarding serious antitrust violations.

However, the case law of the administrative courts has not fully endorsed this interpretation of Article 80(5)(c), so it is difficult to predict whether the commission of an antitrust infringement will exclude an economic operator from public procurement procedures.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
1.3
Which authorities are responsible for enforcing the cartel legislation?
Italy

Answer ... The Italian Competition Authority acts as both the investigative and decision-making body in this regard.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
1.4
How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?
Italy

Answer ... The Italian Competition Authority is very active, in terms of both the number of cases it opens and its application of sanctions. In 2018 eight proceedings concerning anti-competitive agreements were closed, four with the imposition of sanctions. Of these four cases, two involved cartels: I811 – Finanziamenti auto and I812 – FIGC, regolamentazione dell’attività di direttore sportivo, collaboratore della gestione sportiva, osservatore calcistico e match analyst.

Two other cartel cases were closed with a finding of an infringement at the beginning of 2019: I816 – Gara SO.RE.SA., rifiuti sanitari Regione Campania and I806 – Affidamento gare antincendio boschivo.

The average duration of an antitrust investigation in 2018 was 451 days.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
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Cartels