Private antitrust litigation in Italy: overview

A Q&A guide to private antitrust litigation in Italy.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

It is possible to bring stand-alone actions. Stand-alone actions are available for both bi- and multi-lateral, as well as antitrust, infringements. In practice, stand-alone actions are more common for unilateral antitrust infringements, in particular when the dominant position is not disputed (for example, if the defendant has a monopoly), or if it has already been established in a previous decision by the Italian antitrust authority related to different matters.

In the Italian judicial system res judicata has effect only between the parties. Therefore, a claimant cannot rely on a final decision rendered by a court on the same infringement (for instance, a cartel) against one or more defendants. In addition, all the judgments or decisions rendered by the Italian courts are not binding if they are still subject to appeal.

Legislative. The only specific statutory rules in this field are those that designate the competent courts for actions based on Italian and EU competition laws (Article 33, paragraph 2, Law No 287/1990 and Article 2, Law No 27/2012).

Non-legislative. Stand-alone actions are mainly construed as tort actions and are regulated by the general principles set out in the Italian Civil Code (Article 2043, Italian Civil Code).

Adversarial or inquisitorial. Antitrust actions are governed by the Italian Code of Civil Procedure based on an adversarial model.

Follow-on actions

The Supreme Court stated in several decisions that fact-findings contained in the final decisions of the antitrust authority must be considered as privileged evidence (prova privilegiata) (Supreme Court No 3640/2009, No 5941/2011 and No 5942/2011). In one of these precedents, the Supreme Court added that a final decision of the antitrust authority should have the effect of switching the burden of proof against the defendant (Supreme Court No 3638/2009). Because of the high evidentiary value attached to the decision of the antitrust authority by the courts, the claimants usually wait to file a damages action until the decision of the antitrust authority becomes final. If an ongoing investigation of the antitrust authority or an appeal before the Administrative Court is pending, it is likely that the court will suspend the follow-on proceedings to avoid inconsistent outcomes between the two proceedings. The rules governing class actions expressly provide the power to the court to suspend the civil proceedings in case an investigation is pending before the antitrust authority.

Follow-on actions are available for both multi-lateral (for example, cartels), as well as unilateral (for example, abuses of dominant position) antitrust infringements. Most of the follow-on actions brought before Italian courts concerned the insurance and telecommunications sector.

Legislative. There are no specific statutory rules in this field other than those that designate the competent courts for actions based on Italian and EU competition law, as is the case for stand-alone actions (Article 33, paragraph 2, Law No 287/1990 and Article 2, Law No. 27/2012).

Non-legislative. Follow-on actions are mainly construed as tort actions and regulated by the general principles set out in the Italian Civil Code (Article 2043, Italian Civil Code), as is the case for stand-alone actions.

Adversarial or inquisitorial. Antitrust actions are governed by the Italian Code of Civil Procedure based on an adversarial model.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

To commence a stand-alone action, the claimant must demonstrate:

  • The defendant breached competition law.

  • There is a direct causation between the breach and the loss the claimant suffered.

  • The breach was the defendant's fault.

  • The amount of loss suffered.

Causation is regulated by Article 1223 of the Italian Civil Code and requires that the loss (for which the compensatory damages are awarded) must be the immediate and direct consequence of the unlawful conduct. The Supreme Court has further explained that the causal link between the unlawful conduct and the loss must be carried out in two steps (Supreme Court, No 2305/2007):

  • First, it must be assessed whether the link exists based on a high degree of probability.

  • The second step consists of investigating whether other events which were external and independent from the claimant would have caused the same damage.

In the Bluvacanze case, the first step was decisive in excluding the liability of one of the participants in the boycotting cartel. The lack of the implementation of the cartel's decisions was considered a "fracture" that excluded the existence of causation (Court of Appeal of Milan, 11 July 2003, Bluvacanze). In the Inaz Paghe case, the court specifically ordered the independent expert to investigate if there were alternative reasons for the claimant's decrease in business (Court of Appeal of Milan, 11 December 2004, Inaz Paghe). The existence of fault is rarely debated in antitrust actions since it tends to be implied from the infringement of antitrust rules. For the amount of loss to be calculated, see Question 37.

As to standing, after a long debate, the Italian Supreme Court eventually stated that anyone is entitled to bring a legal action against anti-competitive behaviours (Supreme Court No 2207/2005 and 2305/2007). These landmark decisions concern damages actions brought by consumers against a price fixing cartel among insurance companies. The Supreme Court acknowledged the standing of consumers, concluding that any legal or physical person has the right to take such a decision in the course of his professional and non-professional business in a fully competitive market.

Third parties can also bring actions. Indirect purchasers have standing to bring antitrust actions. The only example of offensive passing-on is the International Broker case (Court of Appeal of Rome, 31 March 2008), where a broker successfully claimed damages against a cartel of refining companies and not against the distributors with which the claimant had maintained direct contractual relationships.

In several cases, the claimant brought an action claiming that the agreement entered with the defendant was unenforceable, and in violation of the prohibition of restrictive agreements. Despite there being no previous decisions, a party to an agreement should be considered entitled to claim damages for an infringement of the prohibition of Article 101 of the Treaty on the Functioning of the European Union (TFEU) or Article 2, Law No 287/1990 resulting from that agreement, pursuant to the principles set out by the Court of Justice in Case C–453/99, Courage v Crehan.

Follow-on actions

The same applies to follow-on actions as for stand-alone actions. See above, Stand-alone actions.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. Class actions for damages entered into force in 2010 and are regulated by Article 140-bis of Legislative Decree No 206/2005 (Codice del Consumo(Consumer Code)). Anti-competitive practices are expressly included among the admissible claims.

Opt-in or opt-out. The class action is based on an opt-in model. Both consumer organisations and individual consumers are allowed to bring a class action. The res judicata provision for class action judgments operates a distinction between future individual actions and future collective actions. Consumers who did not participate in the class action can bring individual actions. However, the first class action judgment renders other class actions against the same defendant and based on the same facts inadmissible.

Certification. Collective or class actions require certification. After the claimant has served the first pleading, the court at the initial hearing assesses whether the action is admissible. The class action is rejected if:

  • It is clearly groundless.

  • There is a conflict of interest among the members of the class.

  • The court does not recognise the rights of the class members to be homogenous.

  • The proponent is deemed unsuitable to represent the interests of the class.

The class action as originally regulated required the rights of the class to be "identical". This rigid requirement caused the rejection of a number of class actions. A more relaxed requirement ("homogenous") was introduced by Decree Law No 1/2012 to facilitate class action proceedings. With the order that declares the class action admissible, the court establishes the terms and formalities to be observed by the proponent to notify potential members of the class about:

  • Their right to participate.

  • The time by which it is possible to adhere to the class action.

  • The scope of the rights enforced in the proceedings.

  • The criteria used to admit to the class the consumers wishing to participate

Follow-on actions

The same applies to follow-on actions as for stand-alone actions. See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

Claimants can bring an action against legal entities domiciled within the Italian jurisdiction.

The ordinary rules on jurisdiction apply, including Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) and the EFTA Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 (Lugano Convention).

It is therefore possible to sue a defendant domiciled outside the Italian territory, establishing the jurisdiction of the seat of the claimant as being the place where the damage occurred (Article 5.3, Brussels Regulation). Under Article 6.1 of the Brussels Regulation, this defendant can be used as an "anchor defendant" to sue other defendants who have their seats in different member states. The Italian courts have not considered the possibility of suing a subsidiary (who was not a party to the proceedings) of a company directly involved in a cartel, of an infringing decision issued by the Commission or other national authority domiciled in Italy, in a follow-on litigation. Therefore, it remains to be seen whether, and to what extent, the case law established by the UK courts in Provimi, Copper Tire and KME to use a subsidiary as the anchor defendant can be successful for attracting damages actions before the Italian courts.

In case the defendant is not domiciled in the EU or in a state that is a party to the Lugano Convention, the jurisdiction of the Italian courts is regulated by a Convention between Italy and the state where the defendant is domiciled, or in absence of any Convention, by the Law No 218/1995. If a claim arising from anti-competitive conducts falls within the scope of an agreement between the parties to resolve disputes by arbitration, the Italian Courts lacks the jurisdiction. In previous decisions, Italian courts have expressly acknowledged the arbitrability of antitrust claims (Court of Appeal of Milan, 13 September 2003, Madaus v IBI; Court of Appeal of Milan, 15 July 2006, Terra Amata v Tensacciai).

It has never been discussed by the Italian courts whether, according to Shevill (Case C–68/93), the claimant in an antitrust action can recover from a defendant, sued under Article 5.3 of the Brussels Regulation, only the damages suffered within the Italian jurisdiction. This limitation is likely to apply and this may affect the decision to bring an action before the Italian courts when a relevant portion of damages has been suffered by the claimant outside the Italian territory.

Follow-on actions

The same applies to follow-on actions as for stand-alone actions. See above, Stand-alone actions.

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

There are no precedents of actions brought against individuals. The nature of the "individuality" of the defendant does not prevent the action as long as all the elements required to bring the antitrust action are satisfied.

Follow-on actions

The same applies to follow-on actions as for stand-alone actions. See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

The limitation period for tort damages is five years (Article 2946, Civil Code), whereas for contractual damages it is ten years (Article 2945, Civil Code). There is no statute of limitations for nullity actions (Article 1422, Civil Code). The same limitation periods apply to both stand-alone and follow-on actions.

Italian courts tend to qualify systematically antitrust actions as tort actions, and therefore applying the five year limitation period. The Court of Appeal of Naples in a damages action brought by a consumer against an insurance companies' price fixing cartel, stated that the antitrust infringement had to be considered contractual in nature (Court of Appeal of Naples, 12 July 2007, RC Auto).

The five years period for tort actions starts running from the day the claimant becomes aware, or should have been aware (taking reasonable care), of both the damage caused by the antitrust infringement and the unlawful nature thereof. In two decisions of the Supreme Court in follow-on actions brought by consumers against members of a price fixing cartel it was established that the statute of limitations starts to run from the time the Competition Authority's decision is published (Supreme Court No 2305/2007 and No 26188/2011). In subsequent decisions where the claimants were undertakings rather than consumers, the starting day for calculating the limitation period was considered the day of the Statement of Objections' notification (Tribunal of Milan, 20 May 2011, BT Italia v Vodafone) or, alternatively, the day of the publication of the decision launching the investigation (Tribunal of Milan, 1 October 2013, Teleunit v Telecom; Tribunal of Milan, 15 April 2014, Uno Communications v Telecom; Tribunal of Milan, 14 October 2014, Fastweb v Vodafone).

According to Article 2943 of the Civil Code, the limitation period may be interrupted when a lawsuit, a notice for performance, or an arbitration notice is served on the defendant. The limitation period is also interrupted by the recognition of the claim by the debtor (Article 2944, Civil Code). If the time limitation is interrupted, the time that has run is not counted, and the time limitation begins to run anew from the last day of the interruption (Article 2945, Civil Code). The limitation period may be suspended in certain situations depending on the relationships between the parties (for example between spouses during marriage), but it is unlikely that may occur in antitrust actions. The statutory limitation period set out by the law cannot be extended upon agreement between the parties.

Follow-on actions

Limitation periods are the same as for follow-on actions. See above, Stand-alone actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

There is a special rule for allocating EU and Italian competition cases in the Italian courts. According to Article 3, paragraph 1 of Legislative Decree No 168/2003 (as amended in 2012) the Tribunale delle Imprese has exclusive jurisdiction for competition cases (other than IP and certain company matters). Tribunale delle Imprese are special Chambers established in different geographical areas throughout the Italian territory (see Article 1 of Legislative Decree No168/2003 for the exact locations where the Tribunale delle Imprese can be found). Tribunale delle Imprese have special competence both for stand-alone and follow-on actions.

Follow-on actions

See above, Stand-alone actions.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Stand-alone actions

Not applicable (see Question 7).

Follow-on actions

Not applicable (see Question 7).

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

The general standard of proof applied in civil law proceedings is that of the balance of probabilities (also known as the "preponderance of the evidence"). For most of the evidence, the principle of "free evaluation" applies. For some evidence, the evidentiary value is dictated by the law. For instance, the confessions, or facts, resulting from a public deed must be considered fully proven. Presumptions can be used provided that they are serious, precise and consistent.

Burden of proof

The general rule is set out in Article 2697 of the Civil Code, according to which the burden of proof is allocated on the claimant.

Rebuttable presumptions

The only statutory rebuttable presumption is provided by Article 2600 of the Civil Code, according to which the fault of the defendant is presumed in unfair competition cases. It is discussed whether such a presumption can apply by analogy to antitrust cases. The Supreme Court has mentioned the possibility that the final decision of antitrust authorities could have the evidentiary value of rebuttable presumptions.

 
10. Is liability on a joint and several basis?

Under Article 2055, paragraph 1 of the Civil Code, joint tortfeasors are jointly and severally liable for the damages. This rule was applied in the International Broker case, where the Court of Appeal of Rome concluded that the members of a price fixing cartel in the bitumen industry were jointly and severally liable for the damages suffered by the claimant (Court of Appeal of Rome, 31 March 2008).

There are no previous decisions issued by Italian Courts on this complex issue. However it is likely that a claimant may seek damages for purchases made from non-cartel members if the conditions set out by the Court of Justice in Kone (Case C557/12) are satisfied. These conditions are that the effects of the cartel at issue resulted in umbrella pricing being applied by third parties acting independently and that those circumstances could not be ignored by the members of the cartel.

Under Article 2055, paragraph 2 of the Civil Code, the defendant, or tortfeasor, who paid the full amount of damages may seek to recover from the other tortfeasors an amount in proportion to the relative fault of the various defendants and to the amount of resulting damages. In case of doubt, the degree of the tortfeasors' fault is presumed to be equal (Article 2055, paragraph 3, Civil Code).

The defendants can bring contribution claims if there is a risk that they will end up paying for the damage caused by other parties. Under Article 269 of the Italian Civil Procedural Code, the defendant must declare his intention to make a contribution claim in the first written defence, requesting the judge to postpone the first hearing. He then has to serve upon the third party a writ of summons setting out the contribution claims 90 days before the date of the first hearing (150 days if the third party is domiciled abroad).

The applicable limitation period with respect to contribution claims is generally deemed to be five years under general rues for tort liability, starting from the date of payment by the tortfeasor (see Question 6).

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts / tribunals?

Stand-alone actions

No specific regime of costs exists for private antitrust litigation. The mandatory minimum tariffs system has been repealed in order to foster competition in the market of professional services (for the latest reforms, see Article 9 of Decree Law No 1/2012, converted by Law No 27/2012). Therefore the amount of the legal fees depends on the agreement between the party involved in the litigation and his lawyer. If there was no agreement between the parties, the court can rely on the non-binding criteria set out in Ministerial Decree No 55/2014. It does not seem that this reform will have a substantial impact on the costs related to antitrust actions, which will remain very limited compared to those of other major jurisdictions.

Follow-on actions

See above, Stand-alone actions.

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

The general rule set out by Article 91 of the Italian Code of Civil Procedure (CPC) provides that the costs associated with the action must be borne entirely by the unsuccessful party. However, as an exception to the "loser pays" principle, the court may decide that each party bears its own costs if (Article 92, CPC):

  • There are exceptional circumstances.

  • The legal issues are complex and unusual.

  • There are conflicting court precedents in respect of those issues.

  • The judge deems that any other "justified reason" exists for each party to bear its own legal costs.

Follow-on actions

See above, Stand-alone actions.

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

Since the litigation costs are fairly limited, "after the event insurance" or coverage of a similar nature are not used in Italy.

Follow-on actions

See above, Stand-alone actions.

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

There is no specific provision in the Italian judicial system that deals with third party funding matters and there is no specific prohibition against a third party funding the costs of bringing an action within the jurisdiction. Again, since the litigation costs are not relevant, third party funding is not used in Italy. It remains to be seen in the future how the costs to bring class actions will be funded by proponents. It is possible that third party funding will be used by proponents to avoid a declaration of unsuitability to represent the interests of the class.

Follow-on actions

See above, Stand-alone actions.

 
15. Can claimants assign their claim to a third party funder?

The Italian system does not foresee mechanisms such as the bundling of claims used by an entity like the Cartel Damage Claims (a Belgian company that was successful in German case based on bundled claims) to bring actions on behalf of the victims of antitrust infringements. The prevailing opinion is that these mechanisms are not permitted under Italian law, but there are no previous decisions in this respect.

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

Stand-alone actions

Contingency fees are prohibited by Article 13.4 of Law 27/2012.

Follow-on actions

See above, Stand-alone actions.

 
17. If it possible for a defendant to a claim to bring an application for security for costs?

Not applicable.

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

Stand-alone actions

The time period of a trial depends on a number of different factors and it is difficult to be predicted in advance. Other than the complexity of the case and the necessity to appoint an independent expert, other relevant factors include the work load of the court. However, since the antitrust cases are heard by specialised Chambers, the duration of the entire legal proceedings are normally shorter than the average duration of commercial cases. Generally, first degree proceedings last between 24 and 36 months. There are notable exceptions, such as in the Italian Torpedo case, where the claimant ENI (one of the members of the BR/ESBR (rubber) cartel sanctioned by the Commission) filed a pre-emptive action asking the Italian judge for a declaration of non-infringement. The aim of the claimant was to exploit the slow Italian litigation procedure and at the same time to stay the damages action pending before the English High Court on the basis that proceedings for a declaration of non-infringement had already been launched in the Italian courts. The first hearing was called on 30 June 2008 and the final judgment was delivered on 29 April 2009 (Tribunal of Milan, 8 May 2009, case ENI and others v Pirelli Tyres and others

).

Follow-on actions

See above, Stand-alone actions.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Stand-alone actions

Third parties cannot obtain copies of documents contained in the file.

Follow-on actions

See above, Stand-alone actions.

 
20. Can a claimant seek interim measures?

Stand-alone actions

Interim measures are intended to avoid irreparable harms that may be suffered by the claimant during the time necessary to obtain the final judgment. Such measures are usually requested by the claimant when time is of the essence and a corresponding complaint submitted to the Competition Authority is unlikely to trigger its intervention within the period of time necessary to avoid the irreparable damage. Despite the Authority having the power to issue interim measures to protect the claimant during the period necessary to complete the investigation, the timing of the intervention of the Authority is always uncertain.

Interim relief may be granted if the claimant shows the existence of two elements:

  • Fumus boni iuris (that is, is it shown that there are factual and legal grounds establishing a prima facie case).

  • Periculum in mora (that is, is interim relief necessary to avoid serious and irreparable damage to the party seeking the relief).

Both of these elements must be shown by the claimant.

It is possible to obtain interim relief on a "quia timet" basis, as far as the interim measures are necessary to prevent damage which is considered serious and irreparable.

In the experience of the Italian Courts, the claimant often failed the demonstration of the fumus boni iuris element. Competition cases are particularly fact-intensive and it is often difficult for the claimant to show the necessary evidence to obtain the measures requested in the context of the summary proceedings. In fact, successful interim measures proceedings mainly concern cases of abuse of dominant position where the claimant could rely on previous decisions of the Authority finding the dominance of the defendant and therefore having to show only the abuse.

In contrast, the periculum in mora element is generally considered by the courts in re ipsa (that is, it is considered intrinsically existent due to the nature of the conducts at issue). Most of the time, the antitrust infringements affect the competitive position of the victim in terms of loss of customers, or generally of goodwill. These are considered irreparable damages because they cannot be easily quantified. As a consequence there are few cases where the interim relief sought by the claimant was not awarded because of the lack of periculum in mora. They mainly concern disputes where the alleged anticompetitive conduct was already terminated. The content of the interim measures awarded by the courts usually consists in a cease and desist order where the defendant is enjoined from engaging in those conducts found anticompetitive on the basis of a preliminary assessment. A significant limit for the courts is the lack of power to create new contractual arrangements. As a consequence, the courts can impose the performance of an agreement unlawfully terminated (for instance, because the termination is the object of a boycotting cartel or an abuse of dominant position), but they cannot impose an obligation on the defendant to enter into a new agreement with the claimant (for instance, as a result of a refusal to a deal constituting an abuse of dominant position), or substitute a provision agreed by the parties with one compliant with the antitrust law.

Follow-on actions

See above, Stand-alone actions.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

A defendant cannot apply to "strike out" all or part of a stand-alone or follow-on action, so as to dispose of the action prior to a full trial, but if the defendant raises a preliminary issue sufficient to dispose of the entire claim (such as a lack of jurisdiction, lack of standing, and so on), it may require the court to decide it without any investigation on the merit.

A defendant cannot apply to obtain summary judgment for all or part of a stand-alone or follow-on action, so as to dispose of the action prior to a full trial. The Italian Court can decide only on preliminary issues sufficient to dispose of the entire case.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Staying a claim

A stand-alone action cannot be stayed if there is an ongoing competition authority investigation into the same alleged infringement, since under the current system the future decision of the competition authority is not binding for the court.

Under Article 296 of the Italian Code of Civil Procedure (CPC), the parties can request that the court suspends the trial for three months for justified reasons. The trial may also be stayed by a decision of the court if it is necessary to resolve a preliminary issue (Article 295, CPC). In antitrust cases such an issue is typically represented by a pending investigation before an antitrust authority relating to the same facts, or in follow-on cases an appeal brought before the Administrative Courts or the European Courts by the defendant.

However, in such situations the Italian court is not obliged to suspend the trial. In fact, civil and administrative proceedings relating to the application of Italian antitrust rules are considered autonomous and independent from one another (unlike the decision of the Commission that under Article 16 of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the EC Treaty) (Modernisation Regulation), which cannot be contradicted by national judges) (see Tribunal of Milan, 8 May 2009, ENI and others v Pirelli Tyres and others).

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

No, a party cannot seek to have a specific issue tried as a preliminary issue in advance of a full trial.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

The Italian Supreme Court affirmed that the final decisions of the Competition Authority should be considered privileged evidence (prova privilegiata) (see ex multis Supreme Court No 3640/2009, No.5941/2011 and No 5942/2011). In one of these precedents, the Supreme Court added that a final decision of the Competition Authority should have the effect of switching the burden of proof against the defendant (see Supreme Court No 3638/2009).

Judgments

Previous decisions of the courts are not binding in other disputes among different parties despite the fact that they might concern the same facts and infringements.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

Decisions or judgements of a body of a third country do not have any probative value, but they may be considered by the court as factual elements relevant for the decision of the dispute.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

Discovery is not available, and this limitation represents one of the main obstacles to bringing standalone actions before the Italian courts. The only instrument available to the claimant to acquire evidence from the defendant is to require the court to impose an obligation on the defendant to disclose a specific document pursuant to Article 210 of the Italian Code of Civil Procedure (CPC). The order is granted in case the document is deemed indispensable for the decision of the dispute and there is no alternative evidence available to the claimant. The order can include confidential versions of the documents. However, the court has a duty to compromise between the right of the claimant to obtain the documents necessary to bring the action and the right of the defendant to avoid unnecessary disclosure of confidential information. To this end the court may adopt necessary measures to protect the confidentiality of the documents, typically requesting a redacted version of the documents in order to avoid the disclosure of information that is not necessary to the claimant.

On request of the claimant, or ex officio, the court may also require the public authority to supply information relevant for the litigation under Article 213 of the CPC. Typically this happens in follow-on actions when the plaintiff seeks the disclosure of the confidential versions of the Competition Authority's file.

The claimant can also ask the Competition Authority to disclose those documents necessary to bring an action for damages. The Competition Authority is usually reluctant to grant such a request and in a recent judgment the Tar Lazio (the Italian Administrative Court of First Instance) rejected the application filed by Alitalia against the refusal by the Competition Authority to give access to the jet fuel cartel's file to acquire evidence to bring an action for damages (Tar Lazio No 1344/2012, case Alitalia v AGCM) pursuant to Law No 241/1990 (the Italian equivalent of Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents (Public Access to EU Documents Regulation)). According to Tar Lazio, the refusal was legitimate since the documents contained in the file are considered confidential business information and not strictly necessary in order to bring an action for damages. It seems highly unlikely that the claimant could rely on the co-operation of the Competition Authority and the most advisable course of action seems to require an order for disclosure to the court. The negative consequences could be that the claimant needs to start the civil action in order to have access to documents that may have an impact on the decision whether to start such an action in the first place (mainly related to the quantification of damages).

 
27. Can a party oppose the provision of any documents not in their possession or control?

The defendant during the civil proceedings may oppose the claimant's request made to the court to disclose the document.

The defendant makes his arguments in the written pleadings for the presentation of the evidence. The main arguments to obtain the rejection of the claimant's request are:

  • The request is generic (it does not precisely identify the documents to be disclosed).

  • The request is exploratory (the claimant is not able to identify the exact evidence that can be found in the documents requested).

  • The execution of the request harms the rights of the defendant (because, for example, the documents contain confidential information such as business secrets and commercial strategies and so on).

 
28. Can parties rely on legal privilege to withhold documents from inspection?

The defendant can oppose the claimant's disclosure request by arguing that certain documents are covered by legal privilege and the disclosure may harm his right of defence. To date, legal privilege has not been used in previous civil cases.

Legal privilege applies only to correspondence exchanged between the party and his external counsel. There are no precedents, but it is likely that the conditions set out by the Court of Justice, particularly in Akzo, C-550/07 P, will apply.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

It is possible for the parties to seek to resolve the action through alternative dispute resolution. Legislative Decree No 28/2010 subsequently repealed by Law 98/2013 implemented Directive 2008/52/EC on mediation in civil and commercial matters (Mediation Directive). This piece of legislation established in particular:

  • An accreditation system for mediators and mediation providers.

  • A duty for lawyers to inform their clients in writing about the option or requirement to mediate.

The other main features of the law on mediation are:

  • Participation in a mediation procedure will pause the statute of limitations once for a maximum of four months.

  • Mediation settlement agreements can be made enforceable when they are presented to and approved by the court.

  • Parties who mediate are entitled to a tax credit, to full exemption from stamp duty and to a partial exemption from the tax registration applicable to the settlement agreement (up to EUR50,000).

  • The mediation procedure must be completed within three months from the submission of the request.

  • Costs and fees of the mediation are established by the ADR provider and may vary depending on the value of the dispute.

The law does not prevent the parties from submitting their dispute to any ADR provider or independent mediator operating outside of the accreditation system and without its benefits (enforceability, tax incentives).

In certain matters, the plaintiff has to submit the issue to an accredited mediation provider before going to court. Compulsory mediation may also be ordered by the judge (even in appellate proceedings), or provided for in a contract clause. For compulsory mediations, the costs are fixed and substantially reduced, and if the opposing party fails to appear for the mediation attempt, the applicant will be required to pay only a small administrative fee. Compulsory mediation is not provided for antitrust actions.

When the parties cannot reach an agreement in a voluntary or compulsory mediation, the mediator can make a settlement proposal that the parties are free to accept or decline. In voluntary mediations, the court can take into account the refusing party's absence as an argument of proof.

As with any issue brought to an alternative dispute resolution procedure, the main advantages will be showing good will, preserving a commercial relationship and exploring the business interests of the other party, while the main disadvantages will be the time and resources invested.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Stand-alone actions

Advantages. Negotiations are carried out by lawyers and are covered by legal privilege. The settlement is usually proposed by the defendant to avoid the court passing a judgment that can be used by other potential victims to bring similar claims.

Disadvantages. Typically the defendant is in the position to decide the best course of action once the independent expert has issued his report containing his opinion on causation and/or quantification of damages.

Follow-on actions

See above, Stand-alone actions.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

Permission is not required from the relevant court or tribunal to settle any action prior to or during trial.

In case a settlement is reached during the trial, the only costs awarded by the court are those incurred by the independent expert. Normally the parties regulate the apportionment of legal costs in the settlement agreement.

The relevant court is no longer able to make any order or adopt any decision.

The same applies to collective actions.

 

Proceedings at trial

32. Are actions heard by a jury?

No, actions are not heard by a jury.

 
33. How is confidential information protected during the course of proceedings?

Only the final hearing of the trial is public and it is not compulsorily held but scheduled at the request of the parties. All the other hearings are private and the case file can be accessed only by the parties. The judgment is public and the court does not prepare a non-confidential version for publication.

However, when the court orders the disclosure of documents, it may also grant measures to protect confidentiality.

 
34. What evidence is admissible?

Findings from criminal law proceedings may be admitted in private antitrust actions. The probative value of such evidence is debatable and there is a question as to whether it should be treated as simple circumstantial evidence or whether it should have full probative value.

Witnesses' evidence is admitted and witnesses may be compelled to appear at trial. Cross-examination is not permitted. Only the judge may ask questions directly to the witness. These questions are proposed by the other party and the court remains free to formulate further questions ex officio.

Expert evidence is admissible. The expert may be requested to appear before the court to provide clarifications on his findings, but parties cannot cross-examine the independent expert.

 

Available defences

35. Is a "passing-on" defence available?

The "passing-on" defence is admissible and it has been expressly acknowledged by the Italian Courts in two cases.

In Indaba v Juventus (Court of Appeal of Turin, 6 July 2000), a travel agency agreed with Juventus Football Club to sell tickets for the 1997 Champions League final match in Munich only bundled with travel packages including services such as transportation, local assistance and excursions. The travel agency sued Juventus for antitrust damages. The court found that Juventus had abused its dominant position in the relevant market for the sale of those tickets by imposing excessive prices and the bundle between the tickets and the travel package. However, no damages were awarded because the excessive prices of the travel packages had been transferred by the claimant to the final consumers.

In a second case, Unimare v Geasar (Court of Appeal of Cagliari, 23 January 1999), a provider of handling services at Olbia Airport claimed that Geasar had abused its dominant position through a variety of conduct including through the increase of the fees charged to the claimant. The court incidentally noted that it would not have awarded such damages, since the increase of the fees had been transferred by the claimant to its clients.

 
36. Are any other defences available?

It is unclear whether there is a possibility to sue the parent company and not only the subsidiary that directly engaged in the anticompetitive activity. Despite the fact that the parent company and its subsidiary are considered an economic unit for the application of antitrust law, if the claimant is not able to show that the subsidiary was instructed and actually directed by the parent company, the latter may successfully use the corporate shield that it would generally apply in an ordinary tort action.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

Damages are available. The victim of antitrust infringements may seek compensation for actual loss and loss of profit.

The general principle is that the damages awarded should place the claimant in the position that they would have been in, had the antitrust infringement not taken place. From the application of this principle it follows that the public penalties imposed by an antitrust authority on the defendant are irrelevant.

The damages available in the Italian legal system are compensatory and the claimant needs to show the damages suffered as a consequence of the antitrust infringement.

Restitutionary damages (that is, in respect of the profits achieved by the defendant(s) as a result of the breach) are not available. The loss will be those suffered by the claimant. In intellectual property litigation the claimant has the possibility of being compensated on the basis of the profits gained by the defendant (Article 125, Code of Intellectual Property). There are no precedents where this provision has been used in antitrust damages actions and it is uncertain whether an application by analogy would be admissible.

In the Italian legal system damages are designed solely to compensate the victim. Punitive damages are not available.

Interest

Interest is awarded from the date the infringement occurred up to the date of the publication of the judgment.

 
38. How are damages quantified?

The Italian courts have normally assessed the damages using a "but for" approach. In the Bluvacanze (Court of Appeal of Milan, 11 July 2003), Inaz Paghe (Court of Appeal of Milan, 11 December 2004), Valgrana (Court of Appeal of Turin, 7 February 2002) and International Broker (Court of Appeal of Rome, 8 May 2006) cases, the court compared the actual situation during the period when the infringement produced the negative effects, to the situation on the same market before the infringement produced those effects. In those cases, the calculation was based on the accounting data submitted by the parties.

In Telsystem (Court of Appeal of Milan, 26 November-24 December 1996) the abuse of dominant position prevented the claimant from starting a new business. The "but for" approach was based on the business plan of the claimant and interestingly the court also considered the loss of chances that would have derived from the advantage Telsystem had in being the first operator to enter into the market.

In Albacom the abuse of dominant position consisted in restricting access to the market for services of data transmission through the new technology "x-DSL" (Court of Appeal of Rome, 20 January 2003, Albacom v Telecom). The damages were calculated on the basis of the market share of the claimant in the retail data transmission services market before the launch of the "x-DSL". In this case the "but for" method was based on the assumption that the claimant would have maintained its market share constant in the new market created by the introduction of the more innovative technology.

The Avir case has been the only one where the yardstick method has been used (Court of Appeal of Milan, 16 September 2006, case Avir v ENI). The case concerned an abuse of dominant position consisting in excessive prices charged by ENI to the claimant. For assessing the damages the court compared the growth of the prices charged by ENI with the trend of gas quotations at the London Commodity Exchange during the period of infringement.

In terms of the nature of evidence that is used to establish quantum, the courts have a preference for the use of economic experts.

 
39. Are any other remedies available?

The court can order the publication of the judgment if it might contribute to compensating for the damage caused. In Bluvacanze the request for publication was rejected by the court because the infringement had stopped three years before the date of the judgment and therefore it would not have provided any compensatory effect (Court of Appeal of Milan, 11 July 2003).

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

The judgment of the tribunal may be challenge before the Court of Appeal, which has the power to carry out a full review on the merits. In turn, the judgment of the Court of Appeal can be appealed before the Supreme Court, but its scope of review is mainly limited to questions of law.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

The law implementing the Antitrust Damages Directive is expected to be approved by the end of 2016, although no public consultation has yet started or been announced.

 

Online resources

Website of the Italian Parliament

W www.parlamento.it/home_leggi_presentazione

Description. Official web site of the Italian Parliament.



Contributor profiles

Luca Toffoletti, Equity partner

NCTM Studio Legale

T +39 02 725511
F +39 02 72551501
E l.toffoletti@nctm.it
W www.nctm.it

Professional qualifications. Italian Bar, admitted 1995

Areas of practice. Competition law; litigation.

Non-professional qualifications. JD University of Milan, 1991, cum laude; Yale Law School, Visiting Scholar, 1994; Università Bocconi, PhD in commercial law, 1999; Researcher in commercial law, University of Milan 2000 to date; currently teaching competition law and economics at Faculty of Law, University of Milan

Recent transactions

  • Acting for Telecom Italia in follow-on damages actions against Vodafone.

  • Acting for Linde Medicale in an ongoing cartel investigation before the Italian Antitrust Authority.

  • Assisting various multinational companies in antitrust compliance programs.

Languages. Italian, English

Professional associations/memberships. Associazione Antitrust Italiana (AAI)

Publications. Authored several articles on antitrust law including a monograph on antitrust and technical progress.


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248414845531", "objName" : "Private antitrust litigation in Italy", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/1-633-4469?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-7fcc06b0:15af51b1192:28b7", "analyticsSessionCookie" : "2-7fcc06b0:15af51b1192:28b8", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }