Directive 2014/104/EU on antitrust damages actions has been finally transposed in Italy by means of legislative decree n. 3/2017 (hereinafter, the “Decree“) published on the Official Journal n. 15 dated 19 January 2017.
Subject matter and scope
The Decree applies both to private lawsuits and class actions brought before an Italian national court by any person or entity claiming compensation for harm caused by infringements of EU or national competition laws on anticompetitive agreements and concerted practices (Article 101 TFEU or national equivalent provisions) or abuse of dominant position (Article 102 TFEU or national equivalent provisions).
New rules introduced by the Decree
The Decree introduces in Italy new substantive and procedural rules aiming at implementing and harmonizing at EU level the right to claim full compensation for antitrust damages.
- Disclosure of evidence
Upon reasoned request by one of the parties, national courts shall have the power to order the other party or a third party to disclose relevant evidence which lies in their control, beyond the restrictions set forth by current Italian civil procedural rules.
National courts shall limit the disclosure of evidence to that which is deemed appropriate. When ordering the disclosure of confidential information, national court shall take effective measures to protect such information.
In addition national courts shall have the power to order disclosure of evidence included in the file of a competition authority, but a number of restrictions apply in this case aimed at safeguarding the effectiveness of the public enforcement of competition law.
National courts cannot at any time order a party or a third party to disclose leniency statements and settlement submissions.
- Binding effect of the decisions of the Italian Competition Authority
The infringement of competition law found by a final decision (i.e. a decision that can no longer be appealed by ordinary means) of the Italian Competition Authority (the “ICA”) or by a review court (i.e. an Italian administrative court empowered by ordinary means of appeal to review ICA’s decisions) shall be deemed to be irrefutably established for the purposes of an action for damages brought before an Italian national court.
The binding effect covers only the nature of the infringement and its material, personal, temporal and territorial scope, but not the existence of the harm and the causal relationship between the harm and the infringement of competition law.
The final decision taken by the competition authority of another Member State shall not be binding for the national Italian court but it will be assessed by the court along with any other evidence adduced by the parties.
The binding effects of the decisions of the European Commission were already stated by Article 16 of Regulation n. 1/2003.
- Limitation period
The limitation period for bringing actions for damages before a national court in Italy shall be 5 years. This is not a real innovation since such 5-years limitation period corresponds to that already provided for as a general rule by the Italian Civil Code.
Substantial changes to the current legal framework are the following:
- the 5-years limitation period shall not begin to run before the infringement of competition law has ceased and the claimant knows, or can reasonably be expected to know, of the behavior and the fact that it constitutes an infringement of the competition law, of the fact that the infringement of competition law caused harm to it, and the identity of the infringer;
- additional special rules on the beginning of the termination period apply to damages actions brought against small or medium-size enterprises (SME) or against undertakings or persons who have been granted immunity from fines by a competition authority under a leniency programme;
- the 5-years limitation period shall be suspended when a competition authority opens an investigation or a proceeding in respect of an infringement of competition law to which the action for damages relates. The suspension shall end one year after the infringement decision has become final or after the proceeding is otherwise terminated.
- Joint and several liability
The rule of joint and several liability of all the infringers who caused harm through joint behavior stated by Article 11 of the Directive corresponds to the general rule already provided for by Article 2055 of the Italian Civil Code.
The Decree introduces by way of derogation from that rule some partial exemptions in favor of small or medium-sized enterprises and undertakings or persons who have been granted immunity from fines by a competition authority under a leniency programme.
- Indirect purchaser and passing on of overcharge
Anyone who suffered harm caused by an infringement of competition law shall be entitled to bring an action for damages, irrespective of whether they are direct or an indirect purchaser from an infringer.
The defendant in an action for damages can invoke as a defense 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 (passing on defense). The burden of proving that the overcharge was passed on shall be on the defendant.
The indirect purchaser seeking for compensation has to prove that a passing on of the overcharge has occurred but the proof is facilitated by a set of presumptions.
- Quantification of harm
Full compensation shall cover actual loss, loss of profit and interests and may not lead to overcompensation. No punitive or multiple damages shall apply. The compensation shall be no less and more of the actual harm suffered by the victim. This rule is consistent with the current Italian regime.
The quantification of the damages shall be conducted according to the ordinary criteria already provided for by Articles 1223, 1226 and 1227 of the Italian Civil Code.
The most significant changes are the following:
- It shall be presumed that cartel infringements cause harm, but infringer shall have the right to rebut that presumption;
- The Italian Competition Authority (ICA) may be requested by national courts to assist with respect to the quantification of damages. The ways of such “sui generis” assistance shall be determined by the national court after consultation with the ICA. The Authority shall provide the requested assistance unless it considers such assistance to be inappropriate having regard to the need of safeguarding the effectiveness of the public enforcement of competition law.
- Consensual dispute resolution
The Decree provides for measures aimed at encouraging consensual settlements of claims for damages ruling on the effects of such settlements in the relationship between the parties and in the relationship between the parties and third parties who have not settled.
National courts seized of an action for damages may suspend the proceedings for up to two years where the parties thereto are involved in consensual dispute resolution concerning the claim covered by that action for damages.
- Competent Courts
The competent courts with exclusive jurisdiction in Italy over the actions for antitrust damages will be the specialized business courts of Milan (for all Northern Italy), Rome (for all Central Italy and Sardinia) and Naples (for all Southern Italy).
Entry into force
The Decree will enter into force on 3 February 2017. According to a transitional provision (Article 19), the procedural rules on disclosure of evidence (Articles 3, 4 and 5) and on the possible suspension of the civil proceedings where a consensual dispute resolution has been started by the parties (Article 15, para. 2) shall apply to actions for damages brought after 26 December 2014.
This article is written in cooperation with Massimo D’Andrea