Comparative Guides

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4. Results: Answers
Cartels
4.
Investigations – step by step
4.1
What initial steps do the enforcement authorities take to commence a cartel investigation?
Italy

Answer ... Under Article 6(1) of Decree-Law 217/1998, investigations are formally opened by means of an Italian Competition Authority Board decision. The information that must be contained in the decision to open proceedings is listed in Article 6(3) of the decree-law (eg, the essential elements of the alleged infringements, the deadline for completion of the proceedings and the name of the person responsible for the proceedings). The decision to open proceedings is notified to the undertakings allegedly involved in the infringement and to complainants that have a direct, immediate and present interest (Article 6(4) of the decree-law). This decision is frequently notified to the undertakings under investigation together with the parallel decision to conduct a dawn raid.

Once the Italian Competition Authority Board considers that it has acquired sufficient evidence, it will authorise the issue of a statement of objections (Article 14(1) of Decree-Law 217/1998). The undertakings under investigation and the complainants admitted to the proceedings can file written submissions in response to the statement of objections (Article 14(4) of the decree-law).

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.2
Are dawn raids commonly conducted in your jurisdiction? If so, what are the pre-conditions for conducting a dawn raid? When, where and by whom are they conducted? Do the enforcement authorities have the power to search private as well as company premises?
Italy

Answer ... In case of a suspected cartel, the Italian Competition Authority often conducts inspections at the business premises of any party that may be in possession of documents that are relevant to the investigation. 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.

Inspections of private premises are prohibited under Italian law. During the inspection, Italian Competition Authority officials are assisted by the Italian customs and excise police. Italian Competition Authority officials are under no obligation to wait for legal counsel to arrive.

Minutes are taken of an inspection.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.3
What powers do officers have during the dawn raid? Are there any limitations on these powers?
Italy

Answer ... 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.

Requests for information can be made orally in the course of an inspection. Oral requests and responses to these requests are recorded in the minutes of the inspection. Responses provided during the inspection can be supplemented within the timeframe set out in the minutes.

Italian Competition Authority officials may not ask parties under investigation to reply to questions that would entail admission of the infringement.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.4
What are the rights and obligations of the target company and any individuals targeted during a dawn raid?
Italy

Answer ... 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

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.5
What evidence can be seized during a dawn raid? Do the enforcement authorities have the power to interview witnesses and take statements during a dawn raid?
Italy

Answer ... See question 4.3.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.6
How can a company best prepare itself for dawn raids? What best practices should it follow in the event of a dawn raid?
Italy

Answer ... Any company that may potentially be exposed to antitrust infringement must have a compliance programme in place. This should also include best practices as to how to behave in case of a dawn raid.

In September 2018 the Italian Competition Authority adopted a set of Guidelines on Compliance Programmes, setting out the criteria that will govern the granting of reduced penalties to companies that introduce an antitrust compliance programme or that have one in place at the time antitrust proceedings commence. The guidelines set out a stringent process for assessing compliance programmes with a view to reducing fines, as follows:

  • up to 5% where companies introduce compliance programmes after antitrust proceedings have commenced;
  • up to 15% in cases where the compliance programme has prompted the reporting and termination of an antitrust infringement; and
  • up to 10% where certain criteria listed in the guidelines are met.

The guidelines also provide guidance on the adoption of compliance programmes in the context of a corporate group, and on what kind of compliance programme may constitute a basis for reduced fines.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.7
What are the next steps in the cartel investigation following a dawn raid? What timeframe do these typically follow?
Italy

Answer ... The decision to open proceedings is notified to the undertakings allegedly involved in the infringement and to complainants with a direct, immediate and current interest (Article 6(4) of Decree 217/1998217/98). Frequently, this decision is notified to the undertakings under investigation together with the parallel decision to carry out an inspection.

According to Article 7 of Decree 217/1998217/98, in the course of the proceedings, the undertakings under investigation, as well as complainants and other third parties admitted to the proceedings, can file written submissions and documents and access the investigation file (excluding confidential information). The undertakings under investigation and the complainants admitted to the proceedings can also request to be heard by Italian Competition Authority officials.

Where the Italian Competition Authority board considers that it has sufficient evidence, it will authorise the issue of a statement of objections (Article 14(1) of Decree 217/1998217/98). The undertakings under investigation and complainants admitted to the proceedings can file written submissions in response to the statement of objections (Article 14(4) of Decree 217/1998217/98).

If the undertakings under investigation so request, a final hearing will take place before the Italian Competition Authority board (Article 14(5-9) of Decree 217/1998217/98). Complainants and other third parties admitted to the proceedings may be allowed to participate in the final hearing (but do not have a right to participate), and may be heard separately in order to safeguard confidentiality if they so request. Minutes of the hearing are drawn up, containing the main statements made by the parties.

After the final hearing, the Italian Competition Authority will adopt a final decision.

The entire procedure usually takes between 12 and 20 months.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.8
What factors will the enforcement authorities consider in assessing whether cartel activity has taken place?
Italy

Answer ... The Italian Competition Authority will review the evidence provided by, or requested from, the target and third parties, and the evidence acquired during the inspection.

With regard to the assessment, evidence of conscious parallel behaviour among competitors is not the only evidence required to prove the existence of an agreement or concerted practice. The Italian Competition Authority must also show:

  • the absence of an alternative plausible explanation for the parallel behaviour; and
  • actual contact or exchanges of information between the parties.

The burden of proving the absence of an alternative explanation for the conduct in question rests with the Italian Competition Authority.

For more information about this answer please contact: Paolisa Nebbia from Shearman & Sterling LLP
4.9
In case of a finding of cartel activity, can the company seek to negotiate a settlement, plea bargain or similar resolution? If so, what is the process for doing so?
Italy

Answer ... Under Italian law, a cartel investigation ends with either a finding of infringement, combined with a prohibition and often a penalty, or a finding of no infringement. There is no settlement procedure under Italian competition law.

However, under Article 14ter of Law 287/90, the parties can offer commitments. If the commitments are capable of eliminating the anti-competitive nature of the conduct under investigation, the Italian Competition Authority may accept them and close the investigation without a finding of infringement or a fine. The Italian Competition Authority does not usually accept commitments in cartel cases.

Commitments should be submitted to the Italian Competition Authority within three months of the opening of proceedings, although this term is not mandatory. If they are not manifestly inadequate, they will be posted on the Italian Competition Authority website and published in the Italian Competition Authority Bulletin, in order enable third parties to submit comments (market test). If necessary, the Italian Competition Authority can also issue specific requests for information to gather further useful elements from third parties. Following the market test, the undertakings that have offered the commitments can submit their comments on the information and third-party arguments, and can also amend the commitments originally submitted in light of the results of the market test.

After assessing the suitability of the commitments, the Italian Competition Authority can make them binding on the undertakings concerned and end the proceedings. The commitment decision is then published in the Italian Competition Authority Bulletin.

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