Cartel leniency in Italy: overview

A Q&A guide to cartel leniency law in Italy.

The Q&A gives a succinct overview of leniency and immunity, the applicable laws and guidance, and the regulatory authorities in Italy. In particular, it covers the scope of application, availability of immunity from civil and criminal liability, application procedural rules, circumstances when leniency can be withdrawn, scope of leniency protection, confidentiality and disclosure, and proposals for reform.

To compare answers across multiple jurisdictions visit the Cartel Leniency Country Q&A tool.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Cartel Leniency Q&As visit www.practicallaw.com/leniency-guide.

For a full list of jurisdictional Competition Q&As, which provide a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures in multiple jurisdictions, visit www.practicallaw.com/mergercontrol-guide and www.practicallaw.com/restraintsoftrade-guide.

Patrick Marco Ferrari, Crowe Horwath – Studio Associato Servizi Professionali Integrati
Contents

Regulation

1. What laws provide for a leniency programme and which regulatory authority administers it? Is there any published guidance?

Applicable laws and guidance

The Italian Competition Authority (ICA) is empowered to determine cases where undertakings may benefit from full immunity or fine reduction in light of their co-operation (Article 15(2)bis, Law 287/1990). The ICA adopted its leniency notice (Notice on the non-imposition and reduction of fines under section 15 of law no. 287 of 10 October 1990) (Notice) on 15 February 2007. In the following years, the text of the Notice was amended a few times by the ICA. These amendments also ensure a certain level of consistency with the Model Leniency Programme adopted by the European Competition Network (ECN) (Model Leniency Programme). As of 1 September 2015, the last amendment dates back to 31 July 2013.

The Notice is largely based on the 2006 leniency programme of the European Commission (Commission) and the Model Leniency Programme.

An English version of the Notice is available on the ICA's official website (www.agcm.it).

Regulatory authority

The leniency programme is administered by the ICA.

 

Scope of application

2. What infringements of competition law does the leniency programme cover?

The leniency programme applies to secret cartels (that is, horizontal agreements and concerted practices) in violation of either Article 101 of the Treaty on the Functioning of the European Union (TFEU) or Article 2 of Law 287/1990, particularly those concerning price fixing, market sharing and/or limits on production or sales (section 1, Notice on the non-imposition and reduction of fines under section 15 of law no. 287 of 10 October 1990) (Notice)).

An agreement or concerted practice is deemed to be secret when those elements from which the unlawful nature of the conduct can be inferred are not public or known to clients and/or suppliers (section 1bis, Notice).

In theory, the Notice can apply to vertical aspects of cartels (section 1ter, Notice, which most probably refers to hub and spoke conduct). However, as of 1 December 2015, the ICA has not yet addressed the matter in its leniency decisions.

 

Recent cases

3. What notable recent cases have applied the leniency programme?

As of 1 December 2015, the Italian Competition Authority (ICA) has applied the Notice on the non-imposition and reduction of fines (Notice) in six cases:

  • Case I649 dated 17 May 2007, concerning the wood chipboard market. When the ICA opened the case, it had not yet adopted the Notice. The Notice entered into force a few months before the final decision. The ICA granted one of the undertakings involved, Trombini, full immunity for its co-operation during the investigation.

  • Case I700 dated 24 March 2010, concerning the market for liquefied petroleum gas (LPG). The ICA opened the proceedings on its own initiative with respect to a specific region of the Italian territory (Sardinia). One of the undertakings involved, ENI, decided to co-operate with the ICA, providing evidence showing that the infringement regarded the whole national territory (that is, not only Sardinia) and had a more extensive duration and scope (that is, it affected not only LPG in cylinders but also bulk LPG). ENI was rewarded with full immunity.

  • Case I701 dated 15 December 2010, concerning the retail cosmetics market. This was the first case formally opened on the basis of a leniency application. Henkel, as the first leniency applicant, received full immunity. Colgate and P&G obtained a fine reduction equal to 50% and 40%, respectively. P&G was granted a further reduction for its additional co-operation outside the scope of the Notice.

  • Case I722 dated 15 June 2011, concerning the international logistics industry. Schenker was granted full immunity for its co-operation with the ICA. Agility, DHL and Sittam obtained a fine reduction equal to 50%, 49% and 10%, respectively.

  • Case I733 dated 22 February 2012, concerning the market for sea agency services. Maersk, the first leniency applicant, was granted full immunity. Hapag Lloyd obtained a fine reduction equal to 50% because it provided further information that confirmed and strengthened Maersk's leniency statements.

  • Case I772 dated 25 March 2015, concerning the market for concrete in the Friuli Venezia Giulia Region (Pordenone, Udine, Gorizia and Trieste) and a limited area of the Veneto Region (Treviso). The proceedings started following the leniency application filed by Calcestruzzi, which was eventually granted full immunity from fines.

 

Availability of leniency

Administrative liability

4. Is full immunity from administrative penalties available? What conditions must be met for immunity to be granted?

Full immunity from fines is available for the first cartel participant who voluntarily comes forward to report the illegal activity and to submit information or documentary evidence to the Italian competition Authority (ICA), provided the following conditions are met (section 2, Notice on the non-imposition and reduction of fines under section 15 of law no. 287 of 10 October 1990 (Notice)):

  • In the ICA's opinion, given the nature and the quality of the applicant's submission, the information or evidence provided is decisive to the finding of an infringement, possibly also through a targeted inspection.

  • The ICA does not already have in its possession sufficient information or evidence to prove the existence of the infringement.

To benefit from full immunity or a fine reduction (see Question 5), as applicable, a leniency applicant must also (section 7, Notice):

  • Cease its participation in the infringement immediately after submitting its application, unless it is otherwise agreed with, or requested by, the ICA.

  • Co-operate fully and on a continuous basis with the ICA for the entire duration of the procedure, including by:

    • timely providing the ICA with all relevant information and evidence that comes into its possession;

    • timely answering any requests for information that may contribute to establishing the relevant facts;

    • making its employees and, to the extent possible, its former employees available for interviews with the ICA staff, where necessary. This obligation also implies collecting any relevant information and documents that were in possession of former employees and managers before they were fired or resigned;

    • refraining from destroying, altering or hiding relevant information or documents, or from informing anyone of the existence of a leniency application or its content, before the statement of objections is issued, unless the ICA consents to such disclosure.

In addition, any undertaking intending to submit a leniency application must refrain from informing anyone of its intentions, with the exception of other possible competent competition authorities or, for the purpose of seeking legal advice, external counsel, as far as the undertaking makes sure that counsel does not share the information with third persons.

 
5. Is there a sliding scale of available leniency from administrative penalties?

No immunity is available where the Italian Competition Authority (ICA) already knows about the existence of the cartel at the time when the applicant comes forward, including on the basis of an earlier immunity application. However, the ICA can grant a reduction of fine "generally not exceeding 50%" (unlike the 2006 leniency programme of the European Commission, the Notice on the non-imposition and reduction of fines (Notice) does not provide for fixed reduction bands) if the following conditions are met (section 4, Notice):

  • The evidence provided by the applicant, due to its nature or level of detail, significantly strengthens the evidence in the ICA's possession, therefore considerably contributing to the ICA's ability to prove the infringement. (This notion mirrors that of "significant added value" provided by the 2006 leniency programme of the European Commission).

  • Requirements set out in section 7 of the Notice are met (see Question 4).

To quantify the percentage of the fine reduction, the ICA must take into consideration (section 5, Notice):

  • The value of the evidence provided by the applicant.

  • The timing of submission of added value evidence. Timing is to be assessed also taking into consideration the current phase of the proceedings and the degree of co-operation already provided by the other undertakings.

Previously unknown facts bearing directly on the calculation of the fine are not taken into account by the ICA when setting the amount of the fine to be imposed on the undertaking that, in the context of its leniency application, provided evidence of these facts (known as partial immunity) (section 6, Notice).

 
6. Is immunity or leniency for administrative penalties available to individuals? If so, what conditions apply?

Italian competition law does not provide for fines for individuals, such as managers and employees of undertakings involved. Only undertakings can be fined.

 

Criminal liability

7. Is immunity or leniency available for companies and/or its employees in relation to criminal prosecution? What are the implications for employees when an undertaking has been granted immunity or leniency?

Circumstances

Italian competition law does not provide for criminal sanctions. The only instance when a violation of competition may clearly lead to criminal liability is where individuals collude in the context of public bids (Articles 353, 353bis and 354, Criminal Code). The sanctions include both fines and imprisonment. Certain infringements of competition rules may also lead to criminal liability when they concern speculative conduct aimed at limiting the output or increasing the prices of raw material, food products or first need products (Article 501bis, Criminal Code).

No immunity from criminal sanctions is available in these cases. However, the Italian Competition Authority (ICA), in its 2013 competition law proposal to the Parliament, suggested to introduce a mechanism of immunity and reduction of criminal sanctions for individuals who collaborate in the context of the leniency programme and whose undertakings are eventually granted full immunity or a reduction of fines. However, to the best of the author's knowledge, there are no developments in this respect (see Question 18).

Proceedings against employees

Not applicable (see above, Circumstances).

Employees' interests

Not applicable (see above, Circumstances).

 

Application proceedings

8. When should an application for leniency be made?

As full immunity is only available to the first undertaking coming forward, and the timing of submission is relevant when determining the amount of fine reduction for any subsequent applicant, a leniency application (or a request for a marker (see Question 9, Markers) should be filed with the Italian Competition Authority (ICA) as soon as practicable.

The Notice on the non-imposition and reduction of fines does not set out a precise time limit within which a leniency application can be filed. Accordingly, a leniency application can in theory be filed even at a very late stage of the investigation, and possibly even after the adoption by the ICA of the statement of objections. However, in this case, the chances to be granted a fine reduction become inevitably limited as the ICA is likely to have already a detailed picture of the alleged infringement.

 
9. What are the procedural rules for leniency applications?

Relevant authority

Leniency applications must be filed with the Italian Competition Authority (ICA).

Applicant

Leniency applications can be filed by the legal representative of the company, or other individuals duly empowered to do so, such as external legal counsel. In the latter case, a power of attorney from the company is required.

Informal/confidential guidance

Undertakings are encouraged to establish early contacts with the ICA staff, including in anonymous form, to obtain possible guidance and clarifications (section 9, Notice on the non-imposition and reduction of fines (Notice)). In this respect, prospective applicants can use an ICA dedicated helpline at +39 06 8582 1872. Potential applicants can also schedule an ad hoc meeting with competent officials at the ICA premises, to discuss preliminary matters.

Form of application

There is no official form for leniency applications. Leniency applications can be filed either in writing or, following the applicant's request and subject to the ICA's consent, orally. The applicant's oral statements are taped and transcribed by the ICA staff. In any case, oral applicants are not exempted from the obligation to provide the ICA with all documentary evidence in their possession (section 10, Notice).

Written statements and documents can be hand-delivered to the ICA by scheduling an appointment with competent officials, or sent via fax to +39 06 8582 1177.

At the applicant's request, the ICA can confirm in writing the date and time of the receipt of the leniency application. The ICA must assess the leniency applications in chronological order (section 8, Notice).

Markers

Section 15 of the Notice serves as the basis of a marker system. An applicant's place in the queue can be secured for a limited period of time, while it gathers all the required information and evidence to support its application. On reasoned request by the leniency applicant, the ICA can grant a marker and determine the deadline within which the applicant must submit the additional information required to meet the evidence threshold for immunity under section 3 or 4 of the Notice.

When applying for the marker, the applicant must at least provide the following information to the ICA:

  • Its business name and legal address.

  • The business name and legal address of the other parties to the cartel.

  • A description of the cartel, including its nature, geographic scope, duration and the affected product(s).

  • The details of any other leniency applications the applicant submitted or intends to submit, in relation to the same cartel, to other competition authorities, in or outside the EU.

If the applicant perfects the marker within the set period, the information and evidence provided are deemed to have been submitted on the date when the marker was granted. Where the marker is not perfected timely, the evidence provided by the undertaking can be assessed for the purposes of granting a fine reduction.

Information/evidence

Generally, an undertaking that hopes to benefit from full immunity from fines must provide the ICA with the following information (section 3, Notice):

  • Its business name and legal address.

  • The business name and legal address of the other parties to the cartel.

  • A detailed description of the cartel, including:

    • its nature, geographic scope, duration, purpose, and functioning;

    • the product(s) involved;

    • the date, place and content of contacts among the parties;

    • the name and position of individuals, including the applicant's employees and agents, who, to the best of its knowledge, play (or have played) a role in the collusive conduct.

  • Any evidence of the cartel in its possession, or which it can have access to, accompanied by all necessary explanations and observations.

  • The details of any other leniency applications the applicant submitted or intends to submit, in relation to the same cartel, to other competition authorities, in or outside the EU.

To obtain a reduction of fine, leniency applicants must provide the ICA with evidence that, due to its nature or level of detail, significantly strengthens the evidentiary set already in the ICA's possession, thereby significantly contributing to the ICA's ability to prove the infringement (see Question 5).

Oral statements

Oral statements can be submitted (see above, Form of application).

Short-form applications

A short-form leniency application (called summary application) can be submitted where the European Commission appears to be the best placed authority to deal with the case and the undertaking has already submitted, or is about to submit, a leniency application to the Commission, but nonetheless believes that the ICA may also be well-placed to intervene in the case (section 16, Notice).

The content of the short-form application is broadly similar to that of a marker request (see above, Markers). It does not need to be supported by documentary evidence. By filing a short-form application, the applicant protects its position in the queue with the ICA in relation to the alleged cartel, and must comply with any specific information requests from the ICA.

The submission can be either in writing or oral. For written applications, the ICA, on request by the undertaking, issues a marker, which reports the day and hour of the filing. For oral applications, the day and hour of the submission is indicated in the minutes of the meeting drafted by the ICA. Following the submission, the ICA informs the undertaking as to whether full immunity is in principle still available.

The ICA does not process the short-form application immediately after its submission. If the ICA subsequently acquires jurisdiction over the case, the applicant must complete the application within a given deadline, by submitting the information and documents required under section 3 or 4 of the Notice (see above, Information/evidence). Where the short-form application is successfully and timely completed, the leniency application will be deemed to have been submitted in its entirety on the date of filing of the summary application.

 
10. What are the applicable procedures and timetable?

There is no formal deadline for submitting a leniency application. When conditions set out by the Notice on the non-imposition and reduction of fines (Notice) are met, the Italian Competition Authority (ICA) grants a conditional immunity or reduction of fine to the applicant within a few days or weeks, depending on the amount of evidence to be analysed and the complexity of the case. The precise amount of fine reduction to which the undertaking may be possibly entitled is not specified at this stage. Conditional benefits must be confirmed by the ICA in its final decision, provided that the applicant, during the proceedings, complies with the requirements set out under section 7 of the Notice (see Question 4) (sections 12 to 14, Notice).

In the case conditions set out in the Notice for full immunity are not met (section 2, Notice), the ICA must inform promptly the applicant, which can either withdraw the information and documents already filed for immunity purposes or request the ICA to consider these materials for a possible reduction of fine (see Question 5) (section 11, Notice).

 

Withdrawal of leniency

11. In what circumstances and at what stage of the proceedings can leniency be withdrawn? What implications does the withdrawal of leniency from one company have for other applicants?

The Italian Competition Authority (ICA) can withdraw conditional leniency in the course of the proceedings if the undertaking does not comply with requirements under section 7 of the Notice on the non-imposition and reduction of fines (Notice) (see Questions 4 and 10). Based on the wording of the Notice, it is reasonable to conclude that information and documentary evidence already filed in the context of the leniency programme can be used by the ICA for the purposes of the final decision.

The Notice does not state whether withdrawal by the ICA of the conditional leniency initially granted to an undertaking would automatically benefit other applicants. There is no precedent on this as of 1 December 2015.

 

Scope of protection

12. What is the scope of leniency protection after it has been granted?

Immunity protection extends also to features of the violation (such as an extension of duration or geographic scope of the violation) not reported by the immunity applicant and discovered by the Italian Competition Authority through other applicants' submissions or its own investigation, as far as these omissions are not the result of malice or fault of the immunity applicant.

This approach has been implicitly confirmed by Case I700 and Case I701 (see Question 3).

 
13. Does the competition authority offer any further reduction in fines for an undertaking's activities in one market if it is the first to disclose restrictive agreements and practices in another market (leniency plus)?

Under point 24 of the new national guidelines on the method of setting fines in connection with anti-trust infringements, adopted by the Italian Competition Authority (ICA) on 22 October 2014, an undertaking can benefit from a reduction up to 50% of the basic amount of the fine (amnesty plus) if:

  • It provides the ICA with decisive information concerning a distinct infringement of competition rules falling within the scope of the leniency programme.

  • Conditions for granting this undertaking a conditional immunity in relation to this further violation are met (see Question 10).

As of 1 December 2015, the ICA has not yet applied any reduction of fines pursuant to this new provision. An application to this end has been rejected by the ICA in Case I772 (see Question 3).

 
14. Does the grant of leniency affect a third party's ability to bring a follow-on damages action against a leniency applicant?

Specific limitations to the liability of immunity applicants in the context of damages actions will be introduced following the implementation at national level of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states (Anti-trust Damages Directive). Member states, including Italy, must implement the Directive in their legal systems by 27 December 2016.

In particular, Recital 38 and Article 11(4) and (5) of the Anti-trust Damages Directive provide that an infringer that has been granted immunity from fines under a leniency programme can be jointly and severally liable only to its direct or indirect purchasers or providers. In addition, the contribution that the immunity recipient must possibly make vis-à-vis its co-infringers must not exceed the amount of harm caused to its own direct or indirect purchasers or providers. The immunity recipient is therefore relieved from joint and several liability for the entire harm deriving from the violation. However, the immunity recipient remains fully liable to the injured parties other than its direct or indirect purchasers or providers where they are unable to obtain full compensation from the other infringers.

 

Confidentiality and disclosure

15. What are the rules relating to confidentiality during a leniency application?

Identity disclosure

The identity of the leniency applicant is generally kept confidential by the Italian Competition Authority (ICA) until the adoption of the statement of objections. The statement identifies undertakings that have applied for leniency.

Leniency applicants can request the ICA to keep confidential the identity of individuals, such as managers and employees, who have co-operated for the purposes of preparing the leniency application.

Information disclosure

Parties to the proceedings are granted access to a non-confidential version of the leniency statements only following the adoption of the statement of objections. Access to non-confidential versions of documents attached to the leniency statements can be granted before the adoption of the statement of objections. Parties cannot make any mechanical or electronic copy of leniency statements. In addition, information contained in the leniency statements can only be used in the context of administrative or judicial proceedings aimed at the application of competition rules on which the proceedings before the ICA are based. Leniency statements and documents cannot be accessed by third parties (section 10bis, Notice on the non-imposition and reduction of fines (Notice)).

Although this is not expressly stated by the Notice, the aim of this provision is to protect leniency applicants in the context of possible actions for damages. However, the Notice is soft law only.

Confidentiality requests

Leniency applicants can request the ICA to keep sensitive information confidential from other parties to the proceedings as far as this information is not used against them when reaching the final decision, or is otherwise relevant for the purposes of yhe other parties' defence.

This principle has been confirmed by the Italian Administrative Tribunal of Lazio (n. 8015/2010 and n. 8016/2010, 22 April 2010), and the Italian Supreme Administrative Court (n. 6481/2010, 6 September 2010). Based on these judgments, it is also reasonable to conclude that the ICA can on its own initiative (that is, even absent a specific and reasoned request by the relevant undertaking) consider and treat as confidential certain information provided by the leniency applicant. However, absent a specific request by the party, the ICA is not legally bound to carry out a confidentiality assessment in relation to the information and documents submitted by the leniency applicant.

 
16. What are the rules concerning disclosure of statements made in support of a leniency application?

Domestic submissions and domestic discovery

Italian courts can issue discovery orders under Articles 210 and 213 of the Italian Code of Civil Procedure, requesting the Italian Competition Authority (ICA) to provide documents and information in its possession that both:

  • Are relevant and necessary for the purposes of the court proceedings.

  • Cannot be obtained otherwise by the parties.

In any case, the court cannot adopt discovery orders where the disclosure of relevant information and documents would cause the party(ies) or third persons a "serious damage", or imply the breach of professional or state secrets, as defined by Articles 200, 201 or 202 of Italian Code of Criminal Procedure.

Under section 10bis of the Notice on the non-imposition and reduction of fines (Notice), leniency statements and documents cannot be accessed by third parties. However, the Notice is soft law only.

In this context, the European Court of Justice, in case C‑360/09, Pfleiderer, has also clarified that EU law does not preclude a person who has been adversely affected by an infringement of EU competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. However, it is for the courts and tribunals of the member states, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law (that is, interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the leniency applicant).

The author is not aware of any case where an Italian court has adopted a discovery order in relation to leniency material filed with the ICA.

In addition, Recital 26 and Article 6(6)(a) of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states (Anti-trust Damages Directive) provide that national courts must not at any time order a party or a third party to disclose voluntary and self-incriminating leniency statements. The Anti-trust Damages Directive has not yet been implemented in Italy. However, based on the EU law principle of conform interpretation, national rules must be interpreted, as far as possible, in line with EU directives, including when directives have not yet been implemented at domestic level (see Italian Supreme Court, n. 11.564, 4 June 2015).

Domestic submissions and foreign discovery

Courts of EU member states can address requests to take evidence to Italian competent authorities on the basis of Regulation (EC) 1206/2001 on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters. Under Article 17(5)(c) of this Regulation, such a request can be rejected when it is contrary to fundamental principles of Italian law.

Under section 10bis of the Notice on the non-imposition and reduction of fines (Notice), leniency statements and documents cannot be accessed by third parties. However, the Notice is soft law only.

In this context, the European Court of Justice, in case C‑360/09, Pfleiderer, has also clarified that EU law does not preclude a person who has been adversely affected by an infringement of EU competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. However, it is for the courts and tribunals of the member states, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law (that is, interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the leniency applicant).

The author is not aware of any case where a foreign court has made this kind of request in relation to leniency evidence filed with the ICA.

In addition, Recital 26 and Article 6(6)(a) of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states (Anti-trust Damages Directive) provide that national courts must not at any time order a party or a third party to disclose voluntary and self-incriminating leniency statements. The Anti-trust Damages Directive has not yet been implemented in Italy. However, based on the EU law principle of conform interpretation, national rules must be interpreted, as far as possible, in line with EU directives, including when directives have not yet been implemented at domestic level (see Italian Supreme Court, n. 11.564, 4 June 2015).

Foreign submissions and domestic discovery

Italian courts can address requests for evidence to competent authorities of other EU member states on the basis of Regulation 1206/2001.

In this context, the European Court of Justice, in case C‑360/09, Pfleiderer, has also clarified that EU law does not preclude a person who has been adversely affected by an infringement of EU competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. However, it is for the courts and tribunals of the member states, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law (that is, interests in favour of disclosure of the information and in favour of the protection of that information provided voluntarily by the leniency applicant).

The author is not aware of any case where an Italian court has put forward this kind of request in relation to leniency evidence filed with foreign competition authorities.

In addition, Recital 26 and Article 6(6)(a) of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states (Anti-trust Damages Directive) provide that national courts must not at any time order a party or a third party to disclose voluntary and self-incriminating leniency statements. The Anti-trust Damages Directive has not yet been implemented in Italy. However, based on the EU law principle of conform interpretation, national rules must be interpreted, as far as possible, in line with EU directives, including when directives have not yet been implemented at domestic level (see Italian Supreme Court, n. 11.564, 4 June 2015).

 

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities from other jurisdictions in relation to leniency? If so, what is the legal basis for and extent of co-operation?

The Italian Competition Authority (ICA) is part of the European Competition Network. Leniency information and documents can be exchanged within this network according to rules, and subject to limitations, set out by Articles 11(3) and 12 of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU and the Commission Notice on co-operation within the Network of Competition Authorities, in particular points 40 to 43.

The ICA can also co-operate with other competition authorities on the basis of the principles and recommendations provided by the International Competition Network (ICN) such as the Leniency Waiver Templates and the relevant Explanatory Note.

 

Proposals for reform

18. Are there any proposals for reform?

The Italian Competition Authority (ICA) and/or the Italian legislator are not currently considering any material reform with respect to the leniency programme. The ICA, in its 2013 competition law proposal to the Parliament, suggested to the legislator to introduce a mechanism of immunity and reduction of criminal sanctions for individuals who collaborate in the context of the leniency programme and whose undertakings are eventually granted full immunity or a reduction of fines (see Question 7). However, to the best of the author’s knowledge, there are no developments in this respect.

In the near future, the main foreseeable change regarding leniency will follow the implementation of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states, and will concern the scope of liability of immunity recipients in the context of possible action for damages (see Question 14).

 

Online resources

Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato)

W www.agcm.it

Description. The official website of the ICA is structured in different sections. The website contains a significant amount of information and documents relating to ICA activities, including an organisational chart, relevant legal provisions and guidelines, ICA decisions, the ICA's official journal, press releases, and events organised or sponsored by the ICA. The website is maintained and updated by the ICA itself.

W www.agcm.it/en

Description. This is the official English version of the website. However, it contains only part of the information and documents contained on the Italian language website.


The regulatory authority

Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato)

Head. Giovanni Pitruzzella
Contact details. Piazza G. Verdi, 6/a
00198
Rome
Italy
T +39 06 8582 1872
F +39 06 8582 1177
E protocollo.agcm@pec.agcm.it
W www.agcm.it

Outline structure. The ICA board is composed of three commissioners; one of whom holds the position of President. The ICA board members are assisted by a Secretary General. The ICA board heads the different Directorates. One of them is the Directorate General for Competition, which is further structured in the following Directorates:

  • Energy and Basic Industries.

  • Communications.

  • Banking.

  • Foodstuff and Transport.

  • Manufacturing and Services.

Responsibilities. The ICA has four main areas of activity:

  • Anti-trust (including cartels, vertical agreements, abuses of dominant position and merger control).
  • Protection of consumers (including unfair commercial practices and unfair contract terms).
  • Conflict of interests.
  • Legality rating.

Person/department to apply to. Leniency applications can be filed either by fax (see above, Contact details), or trough scheduling an ad hoc appointment at the premises of the ICA.

Procedure for obtaining application documents. There is no official form for leniency applications.



Contributor profile

Patrick Marco Ferrari, Head of Competition and Anti-trust Department

Crowe Horwath – Studio Associato Servizi Professionali Integrati

T +39 02 806 731
F +39 02 89010836
E patrick.ferrari@crowehorwath.it
W www.crowehorwath.net/it

Professional qualifications. Milan, Italy, 2008

Areas of practice. EU law and competition law; unfair commercial practices.

Recent transactions

  • Advising on a wide range of anti-trust matters, including merger control, cartels, anti-competitive agreements and practices, abuse of dominant position and private anti-trust enforcement.

  • Wide experience in leniency matters, both at European and national level.

  • Representing undertakings in the context of unfair commercial practices proceedings.

Publications. Authored several publications and regularly lectures on anti-trust matters.


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