1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions apply to cartels in your jurisdiction?

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.

1.2 Do any special regimes apply to cartels in specific sectors?

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.

1.3 Which authorities are responsible for enforcing the cartel legislation?

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

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?

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.

2 Definitions and scope of application

2.1 How is a ‘cartel' defined in the cartel legislation?

There is no definition of a ‘cartel' under Italian law. The closest to a definition is the wording used in the Italian Competition Authority's Communication on Leniency Programmes 287 of 10 October 1990, which applies to ‘horizontal secret agreements'.

2.2 What specific offences are defined in the cartel legislation?

See questions 1.1 and 2.1.

2.3 Is liability under the cartel legislation civil, criminal or both?

Undertakings are subject to administrative penalties under Law 287/90 and possible damages claims (of a tortious nature) under Decree-Law 3/2017, which implemented the EU Damages Directive (2014/104/EC).

As a cartel constitutes an administrative offence, no criminal liability is triggered. However, individuals who are involved in bid rigging in the context of public procurement procedures may also commit a criminal offence (under Articles 353, 353-bis and 354 of the Italian Criminal Code).

The criminal liability of individuals may also be triggered by speculative conduct aimed at limiting the production or increasing the price of raw materials, food products or first-need products (Article 501-bis of the Italian Criminal Code). The sanctions include both fines and imprisonment.

2.4 Can both individuals and companies be prosecuted under the cartel legislation?

No; see question 2.3.

2.5 Can foreign companies be prosecuted under the cartel legislation?

To the extent that anti-competitive conduct taking place outside Italy has effects within the Italian territory or a substantial part thereof, such conduct falls within the scope of Law 287/90, or possibly Article 101 of the Treaty on the Functioning of the European Union if it affects trade between EU member states. As a consequence, such conduct may be investigated and sanctioned by the Italian Competition Authority, irrespective of the nationality of the company.

2.6 Does the cartel legislation have extraterritorial reach?

See question 2.5. However, if companies established in Italy engage in cartel conduct affecting only foreign trade (including where the anti-competitive agreements or practices take place within Italy), this falls outside the scope of Law 287/90.

2.7 What is the statute of limitations to prosecute cartel offences in your jurisdiction?

The Italian Competition Authority cannot impose fines on conduct that ended five years prior to the adoption of the decision. In case of continuous infringement, the limitation period starts to run from the date on which the anti-competitive conduct ceases.

3 Investigations – general

3.1 On what grounds may the enforcement authorities commence an investigation?

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.

3.2 What investigatory powers do the enforcement authorities have in conducting their investigation?

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.

3.3 To what extent may the enforcement authorities cooperate with their counterparts in other jurisdictions during their investigation? How common is such cooperation in practice?

Beyond the cooperation required by the European Competition Network, no cooperation agreements with authorities in other jurisdictions exist.

3.4 Is there an opportunity for third parties to participate in the investigation?

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.

3.5 What are the general rights and obligations of the enforcement authorities during the investigation?

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.

3.6 What are the general rights and obligations of the target company during the investigation?

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.

3.7 What principles of attorney-client privilege apply during a cartel investigation?

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.

3.8 Are details of the investigation publicly announced? If so, what principles of confidentiality apply?

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.

4 Investigations – step by step

4.1 What initial steps do the enforcement authorities take to commence a cartel investigation?

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).

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?

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.

4.3 What powers do officers have during the dawn raid? Are there any limitations on these powers?

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.

4.4 What are the rights and obligations of the target company and any individuals targeted during a dawn raid?

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

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?

See question 4.3.

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?

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.

4.7 What are the next steps in the cartel investigation following a dawn raid? What timeframe do these typically follow?

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.

4.8 What factors will the enforcement authorities consider in assessing whether cartel activity has taken place?

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.

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?

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.

5 Leniency

5.1 Is a leniency programme in place in your jurisdiction? If so, how does this function?

In 2007 the Italian Competition Authority introduced a system of partial or total immunity from fines for companies that blow the whistle on a horizontal secret agreement to which they are a party (Leniency Notice, last amended by Italian Competition Authority Decision 24506/2013). The Leniency Notice also applies to vertical aspects of cartels.

According to the Leniency Notice, full immunity from a fine is granted to the first cartel participant to report the illegal activity to the Italian Competition Authority on its own initiative by providing information and documentary evidence. The following requirements must be met:

  • The information or evidence provided must be decisive to prove the existence of a cartel infringement, possibly through an inspection.
  • The Italian Competition Authority must not already have sufficient information or evidence to prove the existence of the cartel.
  • The formal conditions for access to the leniency programme must be satisfied. These are listed in Article 7 of the notice and comprise:
    • terminating participation in the illegal activities (unless the Italian Competition Authority requests otherwise);
    • cooperating with the Italian Competition Authority fully and on an ongoing basis; and
    • not informing anyone of the leniency application.

5.2 What are the benefits of applying for leniency, both for the first mover and for subsequent applicants?

Full immunity from a fine is granted to the first cartel participant to report illegal activity to the Italian Competition Authority on its own initiative. A reduction in fine, normally not exceeding 50%, may be granted to cartel participants that subsequently submit evidence which significantly supports, by its nature or level of detail, evidence already in the possession of the Italian Competition Authority, thereby appreciably strengthening its ability to prove the alleged infringement.

5.3 What steps does a leniency application involve? What timeframe do these typically follow?

A formal request, accompanied by relevant documents and other important information, must be submitted to the Italian Competition Authority, which will issue a receipt certifying the date and time of submission. The Italian Competition Authority will evaluate multiple applications for leniency concerning the same agreement in order of receipt.

Before filing a leniency application, an undertaking may approach the Italian Competition Authority – including anonymously – in order to seek guidance.

On receiving a reasoned request, the Italian Competition Authority may allow applications to be submitted orally. In such case statements of company representatives will be recorded on suitable media and transcribed by the Italian Competition Authority.

There is no specific timeframe for the submission of leniency applications.

5.4 What are the rights and obligations of the applicant during the leniency application and over the course of its cooperation with the enforcement authorities?

These are listed in Article 7 of the Leniency Notice and involve:

  • ending participation in the illegal activities (unless the Italian Competition Authority requests otherwise);
  • cooperating fully and on an ongoing basis with the Italian Competition Authority; and
  • not informing anyone of the submission of the leniency application.

5.5 Is the leniency programme open to individuals? Can employees or former employees benefit from a leniency application filed by their employer? Do the authorities operate a programme for individual whistleblowers separate to the leniency programme?

Not applicable, as there is no liability of individuals for cartel activities.

5.6 Can leniency be denied or revoked? If so, on what grounds?

If the conditions for leniency are not initially satisfied, the Italian Competition Authority will promptly inform the applicant, which may either withdraw the information and documents filed for immunity purposes or request the Italian Competition Authority to consider these materials for a possible fine reduction instead. In case of an initial application for a fine reduction, the applicant may withdraw only the documents submitted.

If the Italian Competition Authority finds that the conditions for immunity from fines are met, acceptance of the application will be conditional on compliance with the conditions attached to leniency pursuant to Article 7 of the Leniency Notice. The Italian Competition Authority will thus make its final position on immunity from fines only in the final decision on infringement.

Accordingly, even after the application has been accepted, if the Italian Competition Authority finds that the conditions attached to leniency pursuant to Article 7 have not been met, it can disqualify the undertaking from any benefits under the Leniency Notice.

6 Penalties and sanctions

6.1 What penalties may be imposed in criminal proceedings on companies? What penalties may be imposed on individuals?

Pursuant to Article 15 of Law 287/90, the Italian Competition Authority may impose fines of up to 10% of the worldwide turnover (ie, the turnover of the entire group, including the ultimate parent company) of each party to the cartel in the previous financial year.

There are no sanctions for individuals under Italian competition law. However, individuals who are involved in bid rigging in the context of public procurement procedures may also commit a criminal offence under Articles 353, 353-bis and 354 of the Italian Criminal Code. Criminal liability may also be triggered by speculative conduct aimed at limiting the production or increasing the prices of raw materials, food products or first-need products (Article 501-bis of the Italian Criminal Code). The sanctions include both fines and

6.2 What penalties may be imposed in civil proceedings on companies? What penalties may be imposed on individuals?

A company may be the target of damages claims brought in civil courts by the victims of the alleged cartel (see questions 8.1 to 8.6).

Any liability of individuals will follow the rules of the Civil Code for actions for damages against members of the administrative board and auditors (Articles 2392 and 2407).

6.3 How are penalties in cartel cases determined? In deciding on the applicable penalties, will the enforcement authorities consider penalties imposed in other jurisdictions?

The criteria for setting fines are set out in Italian Competition Authority Decision 2512/2014, Guidelines on calculation of fines imposed by the Authority pursuant to Section 15 of Law. 287/1990.

The main elements of the guidelines can be summarised as follows:

  • The minimum ‘floor' of a fine is calculated based on the value of the undertaking's annual turnover in the relevant market in the past full year. Depending on the severity of the violation, this amount may be up to 30% of the undertaking's turnover. For the most serious infringements, the minimum percentage should be no less than 15% of the value of sales.
  • In case of a serious competition law violation, the basic fine will be adjusted upwards by between 15% and 25% of the value of sales.
  • The criteria for assessing the gravity of the offence include:
    • the competitive conditions in the relevant market;
    • prejudice against innovation; and
    • the extent of the actual economic effects or – more generally – the effects on the market and consumers, where these can be reliably estimated.

There is no legal provision requesting the Italian Competition Authority to consider fines imposed in other jurisdictions.

6.4 Can a defendant company pay the legal costs incurred by and/or penalties imposed on its employees?

Not applicable.

7 Appeal

7.1 Can the defendant company appeal the enforcement authorities' decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and to which reviewing authority? What is the standard of review applied by the reviewing authority (eg, limited to errors of law or a full review of all facts and evidence)?

Pursuant to Article 33(1) of Law 287/90, the Regional Administrative Court of Lazio has exclusive jurisdiction over appeals of Italian Competition Authority decisions, which may be appealed before the court within 60 days of notification. The first-instance judgment in turn can be appealed before the Supreme Administrative Court within 30 days of notification or within three months of publication. Exceptionally, Supreme Administrative Court judgments may be appealed before the Italian Supreme Court on jurisdictional and competence grounds or for revocation.

An appeal is essentially limited to a review of the legality of the Italian Competition Authority's decision (ie, an assessment of whether the authority based its conclusions on accurately stated facts and supported its decisions with adequate and consistent grounds). However, the review court cannot replace the Italian Competition Authority's assessment, which is within the discretionary powers vested therein, with its own appraisal.

Pursuant to Article 134 of the Administrative Code, the administrative judge has full merits jurisdiction on fines (including reducing or lifting a fine).

7.2 Can third parties appeal the enforcement authorities' decision, and if so, in what circumstances?

Parties that were entitled to participate in the Italian Competition Authority proceedings (see question 3.4) may appeal its decision.

8 Private enforcement

8.1 Are private enforcement actions against cartels available in your jurisdiction? If so, where can they be brought?

Italy has implemented Directive 2014/104/EU concerning actions for damages for infringements of competition law by means of Legislative Decree 3/2017. Claims, which are of a tortious nature, may be brought by any natural or legal person that has suffered loss due to an infringement of national competition law or Articles 101 and 102 of the Treaty on the Functioning of the European Union. Save for the adaptations required under Legislative Decree 3/2017, actions follow the standard procedure in civil courts.

The competent courts with exclusive jurisdiction in Italy over actions for antitrust damages are the specialised business courts of Milan, Rome and Naples.

Although it was delivered in the context of an alleged abuse of dominant position, Supreme Court Judgment 11564/2015 has played an important role in reducing the burden of proof on claimants bringing standalone actions, even before the implementation of Directive 2014/104/EU. The court held that national courts must order full disclosure by the defendant in case of incomplete submission of evidence by the plaintiff, where there is a plausible indication of an antitrust infringement.

8.2 Can private enforcement actions be brought against both companies and individuals?

Only against companies; but see question 6.2.

8.3 Are class actions or other forms of collective action available in your jurisdiction?

Since 2010, consumers have been able to bring class actions for damages suffered as a result of certain breaches of contract or torts on the basis of Article 140-bis of the Consumer Code. In particular, class actions may be brought by individual users or consumers that have suffered damage due to the conduct of the defendant, provided that they can claim ‘homogenous' rights.

National consumer associations, committees and representative entities have standing only if they have received a specific mandate from members of the class.

Despite attempts by the government to improve their effectiveness, class actions have not been widely used in Italy: fewer than 100 have been commenced so far and many of these were rejected for not meeting the admissibility requirements.

However, new legislation which will come into force on 19 April 2020 (Law 31/2019) should make it easier for claimants to fulfil the admissibility requirements. This is expected to become a key tool for claiming damages in several areas and on behalf of a wide range of classes.

8.4 What process do private enforcement actions follow?

Private enforcement actions generally follow the procedures for civil litigation. However, Legislative Decree 3/2017 introduced several specific provisions aimed at helping the plaintiff to discharge its burden of proof. Class actions are regulated by a specific procedure.

8.5 What types of relief may be sought and what types of relief are most commonly awarded? How is the relief awarded determined?

Three types of measures may be sought in civil litigation:

  • an award of damages, to compensate for loss suffered by a victim of the cartel;
  • a declaration that annuls an agreement for being anti-competitive; and
  • a declaration that an agreement is not anti-competitive.

The second and third remedies are less common in cartel cases.

8.6 Can the decision in a private enforcement action be appealed? If so, to which reviewing authority?

The judgment in a private enforcement case can be appealed according to the ordinary rules of civil procedure, either within 30 days of service of the judgment or within six months of publication.

9 Trends and predictions

9.1 How would you describe the current cartel enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Italian Competition Authority continues to pay particular attention to bid-rigging cases in the context of public procurement, with a view to helping to avoid excessive public expenditure. In 2018, it opened three cartel investigations in sectors in which the alleged cartels aimed to distort the outcome of public tender procedures:

  • private security services for the public administration (I821 – Affidamenti vari di servizi di vigilanza privata);
  • health and safety services for public workplaces (I822 – Consip/gara sicurezza e salute); and
  • waste management (I831 – Gare AMA servizio smaltimento rifiuti).

These cases will likely be decided in 2019.

10 Tips and traps

10.1 What would be your recommendations to companies faced with a cartel investigation and what potential pitfalls would you highlight?

The Italian Competition Authority has become particularly strict in assessing antitrust compliance programmes as a means for companies to obtain reductions in possible fines. It is therefore of paramount importance that compliance programmes carefully follow the Italian Competition Authority's guidelines, as well as further indications that may be gleaned from past Italian Competition Authority decisions.

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.