Answer ... According to Article 12 of Law 287/90, after assessing the evidence in its possession and submitted to it by the public authorities or any other interested party (which may or may not qualify formally as a ‘complainant’), the Italian Competition Authority can conduct an investigation to ascertain any infringement of the prohibitions set out in Article 2. However, the Italian Competition Authority is under no obligation to start an investigation once it receives a complaint. If it decides not to do so, the Italian Competition Authority will send a letter to the complainant explaining its position.
Answer ... The Italian Competition Authority’s investigative powers are set out in Article 14(2) of Law 287/90 and Articles 8 to 11 of Decree-Law 217/1998.
The Italian Competition Authority can request in writing from any individual, undertaking or entity any information or documents in its possession that may be relevant to an investigation. Requests for information and the disclosure of documents can also be made orally in the course of hearings or inspections. Oral requests and responses to these requests are recorded in the minutes of the hearing or inspection. Responses provided during the hearing or inspection can be supplemented within the timeframe set out in the minutes. The Italian Competition Authority may also:
- hear any other individual, undertaking or person for the purposes of aiding the investigation; and
- make written records of any information collected.
The Italian Competition Authority can also inspect the business premises of any party that may be in possession of documents that are relevant to the investigation. On commencing an inspection, Italian Competition Authority officials must present a document issued by the Italian Competition Authority that indicates:
- the object of the inspection; and
- the penalties for refusal or failure to supply, or delay in supplying, the requested documents and information, or for supplying untruthful documents or information.
Italian Competition Authority officials have the power to:
- enter any premises, land or means of transport of parties under inspection, excluding their place of residence or domicile where this is extraneous to the operations of the undertaking under investigation;
- examine and copy books, business records and documents that are relevant to the investigation; and
- request oral explanations and information.
Minutes are taken of the inspection.
The Italian Competition Authority board can authorise the submission of expert reports and statistical and economic analyses, and may consult experts as proposed by the officials.
The measures through which expert testimony and analyses are requested, and the results thereof, are notified to the parties to which the investigation refers, to enable them to exercise their right of defence.
Answer ... Beyond the cooperation required by the European Competition Network, no cooperation agreements with authorities in other jurisdictions exist.
Answer ... Under Article 6(4) of Decree-Law 217/1998, parties that have a direct, immediate and present interest in an investigation and that have submitted reports or complaints relevant to its commencement are entitled to receive notice of the decision to initiate proceedings. Under Article 7(1)(a) of Decree-Law 217/1998, the following parties may participate in the proceedings:
- parties that have received notice of the decision to initiate proceedings under Article 6(4); and
- parties representing public or private interests and associations representing consumers that might be directly, immediately and presently damaged by any infringements that are the subject of the investigation, or by any measures adopted as a result thereof, provided that they submit reasoned requests to intervene within 30 days of publication of the notice of the decision to initiate proceedings in the Italian Competition Authority Bulletin.
Answer ... See question 13. With regard to the obligations of the enforcement authorities:
- communications between external qualified lawyers and clients are protected by legal professional privilege;
- as under EU law, parties under investigation have the right not to reply to questions that would entail admission of the infringement. This is known as privilege against self-incrimination; and
- during an inspection, companies may be assisted by lawyers to avoid the disclosure of documents which are covered by legal privilege or which are not directly related to the subject matter of the proceedings.
Answer ... The target has the following rights:
- the right to be heard by Italian Competition Authority officials when the investigation is opened and before it is closed;
- the right to be heard by the Italian Competition Authority board at a final oral hearing;
- the right to produce, at any time during the investigation, written submissions, documents, arguments and opinions; and
- the right to access the investigation file (with the exception of confidential information).
With regard to access, the Supreme Administrative Court, on appeal from the Regional Administrative Court of Lazio, recently overturned an Italian Competition Authority decision to refuse a company that had already been penalised for participating in a cartel in the concrete industry access to confidential documents gathered in the context of new cartel proceedings, in which the company was also involved (Judgment 3409/2016). The reason for the refusal was that the documents concerned different geographical areas from those in which the applicant’s alleged anti-competitive conduct had occurred. The court referred to the quasi-criminal nature of antitrust proceedings and concluded that the parties must be granted access to all administrative documents that appear necessary for the exercise of their rights of defence – both in antitrust administrative proceedings and in appeal proceedings before the courts.
Finally, during an inspection, lawyers may assist companies to avoid the disclosure of documents which are not directly related to the subject of the proceedings or are covered by legal professional privilege.
The target and its representatives must supply all information and documentation requested, and cannot refuse to supply such information or documents on any of the following grounds:
- confidentiality or the exercise of powers and authority imposed by company regulations or internal instructions, including oral instructions;
- the need to protect the party concerned from the risk of tax or administrative penalties; or
- the need to protect company or industrial confidentiality, unless the Italian Competition Authority acknowledges particular requirements of this kind that have already been brought to its attention.
Refusal or failure to provide information or documents requested by the Italian Competition Authority without justification may trigger a fine of up to €25,821. Submission of untruthful information or documents may trigger a fine of up to €51,643.
Answer ... Communications between external qualified lawyers and clients are protected by legal professional privilege.
Communications of in-house lawyers are not protected by legal professional privilege, unless they are limited to copying advice received by external lawyers.
Answer ... The decision to open proceedings is usually public and posted on the Italian Competition Authority’s website, together with a press release, shortly after proceedings are opened. This contains some basic information concerning the nature of the infringement under investigation, as well as a reference to the undertakings involved and, sometimes, to whether inspections have been carried out.
The final decision taken by the Italian Competition Authority is published in the Italian Competition Authority Bulletin and posted on its website, in its non-confidential version (as negotiated with the relevant party).
Under Article 14(3) of Law 287/90 and Articles 12 and 13 of Decree-Law 217/1998, parties can submit a request to the Italian Competition Authority that certain documents and information be treated as confidential.
Based on the principle established by the administrative courts with regard to leniency materials (Supreme Administrative Court Judgment 6481/2010), it is reasonable to conclude that the Italian Competition Authority can, on its own initiative (ie, in the absence of a request from the relevant undertaking), consider and treat as confidential certain information provided by the parties. However, in such cases the Italian Competition Authority is not legally bound to conduct a confidentiality assessment in relation to the information contained in the file.