The European, Middle Eastern and African Antitrust Review 2018

Italy: Cartels

14 August 2017

DLA Piper

Anticompetitive behaviours such as price fixing, market sharing and horizontal agreements between undertakings aiming to agree commercial strategies and policies are considered the most harmful infringements of competition law and for this reason are usually at the top of the agenda of competition authorities.

The level of enforcement against cartels and anticompetitive agreements in Italy in 2016 has been less than in 2015. In the past year, the Italian Competition Authority (ICA) concluded seven proceedings1 (in 2015, 14 proceedings were concluded) and opened only four new investigation proceedings related to anticompetitive agreements2 (in 2015 eight new proceedings were opened): three under article 101 of the Treaty on the Functioning of the European Union (TFEU) and one3 under article 2 of the Law No. 287 of 10 October 1990 (Competition Act).

In the first five months of 2017 ICA's activity has gone back to being very intense: 10 new investigations4 have been started.

The scope of the ICA's scrutiny has been very broad: secret cartels but also exchanges of information, inter-professional agreements and public procurement cases.

Most of these cases have been opened further to a complaint. In five cases the ICA started the proceeding ex officio.5 Only one case was opened following a leniency application.6 The apparent failure of the leniency programme remains unsolved.

Legislation overview and recent changes

Similarly to article 101 (1) of the TFEU, article 2 (2) of Law No 287 of 10 October 1990 (Competition Act) prohibits agreements that restrict competition by means of directly or indirectly fixing purchase or selling prices or any other trading conditions, sharing markets or sources of supply, or in other ways. Pursuant to article 1, paragraph 4, of the Competition Act Italian competition rules shall be interpreted in accordance with the principles of European Community competition law.

Article 2 of the Competition Act applies to anticompetive agreements which may affect trade within the Italian market or a significant part of it, while article 101 TFEU applies to anticompetitive agreements thaat may affect trade between member states.

The ICA is responsible for the public enforcement of the cartel prohibition in Italy based either on article 2 of the Competition Act or article 101 TFEU.

Legislative Decree No. 3 of 19 January 2017, transposing Directive 2014/104/EU, amended article 1 of the Competition Act, providing that the ICA may apply in the same cases article 2 of the Competition Act in parallel to article 101 TFEU.

The rules governing investigations launched by the ICA are set out in Presidential Decree No. 217 of 30 April 1998 (the Regulation). They differ from the corresponding European procedural rules in some significant aspects. First of all, pursuant to article 8 of the Regulation, the ICA may exercise its investigative powers only after adopting a decision opening the investigation. Secondly, the investigated parties and third parties admitted to the proceedings have the right to access the ICA's files before the communication of the statement of objections.

A Leniency Notice7 and a Commitment Notice8 complete the relevant legal framework (see above). Cartels in breach of article 2 of the Competition Act or article 101 TFEU are void and unenforceable, administrative fines apply and damage actions can be pursued by the victims of the cartel. Pursuant to article 15 of the Competition Act, the ICA may decide, depending on the gravity and duration of the infringement, to impose on each undertaking a fine of up to 10% of its turnover from the previous financial year.

The ICA is also granted the power to order interim measures. While so far this device has been very infrequent (before 2016 only four interim measures were granted and the latest was adopted in 2007) in 2016 and in the first five months of 2017 the ICA granted interim measures in three cases,9 but all concerned cases of abuse of dominant position.

The ICA's decisions may be challenged before the Administrative Regional Court of Lazio (TAR Lazio), the decisions of which may be appealed before the Supreme Administrative Court.

Although there are no criminal sanctions provided for in the Competition Act, certain cartel activities may be caught by Italian criminal law provisions. In particular, article 501 of the Italian Criminal Code provides for criminal sanctions (including imprisonment for up to three years) for ‘market manipulation through the misuse of price sensitive information'. According to article 501-bis of the Italian Criminal Code individuals can be convicted (and liable to imprisonment from six months to three years and fined up to €25,822) for ‘speculations on prices and quantities of raw materials and basic food products'. Article 507 of the Italian Criminal Code provides imprisonment (of up to three years) for individuals involved in ‘boycotts'. Finally under article 353 of the Italian Criminal Code, bid rigging attracts criminal sanctions (including imprisonment from six months to five years).

The ICA has the power to close the proceeding if, within three months from the start of the investigation, the companies under investigation offer commitments to address the anticompetitive concerns.10 In this situation, according to article 14-ter of the Competition Act, the ICA can make the commitments binding and close the proceeding without making an infringement finding.

As far as private enforcement is concerned, the main change introduced in the Italian legal framework consists in the adoption of Legislative Decree No. 3 of 19 January 2017, transposing Directive 2014/104/EU (see below for further information).

The Italian leniency programme and recent case law

According to article 15 of the Competition Act, in 2007 the ICA adopted Guidelines on the non-imposition and reduction of fines in leniency applications. The Italian leniency programme mainly follows the European Competition Network model and differs in certain aspects from the leniency treatment granted by the European Commission (EU Commission).

Although starting from the introduction in Italy of the leniency programme it has not registered a widespread utilisation, in 2015 the ICA has concluded a proceeding opened the previous year further to the request of admission to the leniency programme11 and it has opened a new investigation proceeding following a leniency application, concluded in 2016.12

The device allows the first company, which informs the ICA of the existence of a secret cartel and provides decisive evidence to enable the ICA to carry out targeted inspections, to obtain full immunity from fines. Other undertakings which subsequently provide information and evidence relating to the cartel, may qualify for a reduction in the fines which would otherwise be imposed. Generally, the reduction will not exceed 50% of the fine. This differs from the EU Commission's leniency programme regulation, which provides for a range of discounts based on the order of arrival. In Italy although timeliness is a relevant factor, there is no such incentive to ‘race for the court'.

For example, in the cosmetics cartel (see I701 Vendita al ­dettaglio di prodotti cosmetici),13 Procter & Gamble qualified as the third leniency applicant and was granted a 40% discount in the sanction awarded; whereas, in the International freight forwarders cartel, DHL qualified as the third leniency applicant but was granted a 49% reduction.

In order to determine the appropriate level of fine reduction, the ICA takes into account the time at which the evidence was submitted, having regard to the phase of the proceedings, the level of cooperation provided by other undertakings and the evidentiary value of the information and documents which are submitted. This means that providing evidence at an early stage of the proceedings will be better rewarded, at least in principle.

Leniency applicants are not entitled to simply report unlawful behaviour. Instead they have to (i) confess their participation in the secret cartel and (ii) support their statements with evidence.14 For example, in case I789 - Agenzie di modelle,15 the ICA accorded the immunity from the sanction to the leniency applicant because it had provided not only crucial information on the existence of the cartel but also evidence of such information; in particular the applicant provided - inter alia - the minutes of the meetings among the undertakings and the emails exchanged between them.

In its recent judgment in the case I733 Agenti marittimi,16 the TAR Lazio17 annulled the decision through which the ICA had ascertained a price-fixing cartel involving 15 maritime agencies and two trade associations, notwithstanding the fact that the investigations were driven and supported by statements and documents provided by two leniency applicants. However, in principle the TAR Lazio did not challenge the reliability of the leniency applications and it simply disputed the wrong qualification of the conducts described by the leniency applications as unlawful, underlining the ICA's burden to prove that an infringement of competition law occurred.

The decision has been recently upheld by the Council of State that was not convinced by the ICA's argument according to which the TAR Lazio judgment would have frustrated the leniency programme. The Council of State stated that leniency programme covers only secret horizontal agreements and in the case at hand the declarations of the participants and other findings did not prove this secrecy; moreover, according to the Council of State, the confessions only prove that meetings between undertakings occurred but did not demonstrated the existence of an anticompetitive horizontal agreement.18

More recently, the Council of State has made clear that the discrepancy between the declarations made by two leniency applicants in the same proceedings is not relevant, in order to dismiss the relative decision of the ICA, when such inconsistency is not able to compromise the coherence of the investigation framework of the Authority.19

In a recent judgment20 the Council of State affirmed that the annulment of the decision of the ICA which ascertained the existence of a cartel further to a leniency application does not entail the duty for the ICA to return the amount paid as a reduced sanction by the leniency applicant that did not challenge the decision before the admistrative court.

Useful indications on the priority of leniency applications simultaneously filed both with the EU Commission and the ICA, have been provided by the TAR Lazio within the appeals against the ICA's decision I722 Logistica internazionale21 on 19 freight forwarders and a trade association.

The main point made by the TAR Lazio22 originated from the appeal of DHL, which first applied for leniency with the EU Commission and then with the ICA. Specifically, the TAR Lazio rejected DHL's appeal, highlighting that neither a European law, nor a national one regulates the relationship between the leniency application filed with the EU Commission and the one filed with the ICA. According to the TAR Lazio, no ‘necessary presupposition' exists between the above said applications.

The Council of State has sought guidance from the ECJ on how to deal with applications for the leniency programme when they are made both to the EU Commission and national competition authorities.23 The ECJ24 confirmed the autonomy of the EU leniency programme and the ones of national competition authorities. The Council of State therefore confirmed the TAR Lazio's judgment on the appeal of DHL.25

The sanctions

The Competition Act awards the ICA the power to impose sanctions in cases of antitrust infringements. Pursuant to article 15 of the Competition Act, where the ICA finds that there has been an antitrust infringement, it shall order the undertakings concerned to terminate the infringement and it may decide, depending on the gravity and the duration of the infringement, to impose an administrative fine of up to 10% of the turnover of each undertaking or entity involved in the infringement during the prior financial year.

The Competition Act also provides for administrative fines when there is a lack of cooperation during the investigation. Article 14 of the Competition Act states that the ICA may impose a fine up to €25,822 on any natural personal who refuses or fails to provide the information or exhibit the documents in response to a request made during an investigation. The sanction is increased up to €51,645 when the information or the documents supplied are untruthful.

Pursuant to article 31 of the Competition Act, the general regulation of the administrative fines contained in Law No. 689/1981 applies to the fines imposed by the ICA insofar as it is compatible with the Competition Act. Italian case law has clarified that Law No. 689/1981 sets the general criteria to calculate the amount of the fine, while the Competition Act and Regulation No. 217/1998 regulate the procedure by which the fines are imposed by the ICA.

After many years of the ICA applying European Commission guidelines on the method of setting antitrust fines (EU Guidelines), on 31 October 2014 the ICA published its own specific guidelines, which were adopted on 22 October 2014 (Guidelines).26 The ICA began applying Guidelines from the beginning of November 2014.

The Guidelines explain the principles that the ICA will apply in setting the fines in case of antitrust infringements, in order to ensure the transparency and the predictability of its decisions. The Guidelines are structured as follows: the first part deals with the basic amount of the fine; the second and third list the adjustments to the basic amounts due to aggravating and attenuating circumstances, and other factors; and the last part is focused on the multiple violations of competition law.

The most notable differences between the Guidelines and the EU Guidelines are, among others:

  • an express provision on the reduction of the fines for the undertakings that have adopted an antitrust compliance programme. According to this provision, those undertakings that have adopted and applied a tailor-made compliance programme according to the best national and European practices may benefit from a reduction of the fine (up to 15%); and
  • a specific paragraph dedicated to the fines in antitrust cases concerning public tenders (see below for further information).

Like the EU Commission, the ICA first determines the basic amount of the fine in proportion to the value of the sales relating to the infringement. It then multiplies this number to the number of years (or parts of years) the infringement lasted. Finally, it applies the aggravating and/or mitigating circumstances.

As regards the reduction of fines for financial hardship, the ICA already deviated from the EU Guidelines by granting the reduction even though the company only made losses in the previous fiscal year, whereas under EU competition law there must have been three consecutive years of losses.27 Pursuant to the Guidelines, only the losses in the previous financial years will not be considered by the ICA to obtain a reduction.

The Guidelines provides for a reduction of fines for commitments offered by the parties when these are aimed at eliminating or reducing the effects of competition law infringements. This mitigating circumstance is not a novelty for the ICA, which has already been applying it in accordance with article 11 of Law No. 689/1981.

Delays in the payment of the fines imposed by the ICA result in additional fines. Pursuant to article 27 (6) of Law No. 689/1981, the original fine is increased by 10% for every six months of delay after the deadline to pay the original fine.

In a recent judgment,28 the Council of State established that in cases where the original fine has been annulled by the first instance judgment and has been later restored by the court of appeal, the fine for the delay is charged even for the period during which the original fine was annulled. According to the Council of State, if the annulment judgment is overturned, it has to be deemed never to have occurred. Therefore, the fined party cannot oppose the annulment as a justification for the delay in the payment of fines. However, in the most recent judgement, the TAR Lazio case law stated that a fine for the delay shall not be imposed for the period between the annulment of the sanctions and their reinstatement.29

In 2016, the ICA concluded seven proceedings30 regarding possible infringements of article 2 of the Competition Act or article 101 TFEU, while three proceedings31 have been concluded in the first five months of 2017. In seven of these cases, it ascertained that there had been an infringement of competition law and in five of those imposed fines on the undertakings involved for a total amount of about €244 million. The fines imposed on a single undertaking ranged from about €12.460 to €51 million.

On the one end, the lowest fine was imposed in the case I789 - Agenzie di modelle where the ICA imposed a fine equal to the total amount of €4,5 million against nine model management companies operating in Italy, as well as their sector association. The proceeding was open further to a leniency application. The ICA has ascertained that the nine companies, also thanks to their sector association, has reached an anticompetitive agreement which had as objective the coordination of the respective commercial conduct as regards both the economic and contractual terms applied to clients and the terms of affiliation and management of the models.

On the other end, the highest fine of about €100 million was imposed in the case I783 - Accordo tra gli operatori del settore vending. In this case, the ICA has ascertained the existence of an anticompetitive agreement among the main vending operators in the food and beverage sector and their category association aimed at maintaining high prices and at preserving the companies' profitability.

More generally, in the past two years - since the adoption of the Guidelines - the amount of sanctions imposed by the ICA for infringement of article 101 TFUE and article 2 of Competition Act, has significantly grown.

In accordance with article 261 TFEU, article 134 of the Italian Code of Administrative Procedure states that the fines imposed by the ICA are subject to full judicial review by the administrative courts, which may cancel, reduce or increase the fine. To this end, the administrative courts have invited the ICA in several cases32 to point out the factors used to set the fines in its decisions: the decisions should express the percentage of the value of the sales used to determine the basic amount of the fines and the percentages applied for the aggravating circumstances and mitigating circumstances.

The administrative courts are usually very careful to check whether the ICA has properly applied the aggravating circumstances. For instance, in the appeal against the ICA's decision I731 Gare assicurative asl e aziende opedaliere Campania,33 the TAR Lazio found that the ICA had failed to provide sufficient and clear reasoning for the imposition of an aggravating circumstance.34

The Council of State, in its judgment35 I765 Gare gestioni fanghi in Lombardia e Piemonte, reduced the fine imposed by the ICA, stating that the absence of effects, irrelevant for the purpose of ascertain a restriction by object, should have been considered in the determination of the sanction.

In a recent judgment,36 the TAR Lazio made clear the conditions according to which the ICA may increase the sanction due to the gravity of the infringement: further elements, in addition to the violation, must occurred; the anticompetitive agreement or the cartel must be characterised by a particular ‘secrecy'; and the need to safeguard the continuation of the business activity of the company, avoiding seriously jeopardising its economic strength, should be considered.

Specific rules for public tenders

As anticipated, the Guidelines set forth specific provisions for public tenders. In particular, according to the Guidelines in case of tenders the basic amount of the fine will be determined by reference to the value of the contract awarded and without taking into account the duration of the infringement. However, in specific cases the ICA will also consider the value of the sales of the undertaking concerned in the relevant market.

The methodology of the value of the contract awarded leads the ICA to impose a very high sanction in case I785 - Gara CONSIP Servizi di Pulizia nelle Scuole.37 In this case, the ICA ascertained the existence of a cartel during the participation in a public tender organised by CONSIP (the public entity aimed at seeking the supply of services in the public administration sector) for the provision of cleaning services in public schools and has imposed a fine of about €114 million.

Furthermore, in relation to tenders, on 23 December 2014 the ICA clarified that unnecessary temporary groups of undertakings that are individually able to satisfy the financial and technical requirements to take part in tenders can be expressly excluded from the opportunity to submit offers when the following conditions are met:

  • the clause affirming the prohibition of these undertakings shall state plausible reasons justifying the exclusion from tenders (eg, nature of service and/or structure of the relevant market);
  • this clause shall set forth that the exclusion is not automatic, since the contracting party has to prove the existence of concrete and actual risks that the undertakings involved in the temporary business grouping enter into anticompetitive agreements; and
  • this clause shall set forth that the contracting party has to consider the reasons provided by the undertakings involved in the temporary business grouping, including management and industrial efficiencies.38

Commitment decisions

Law Decree No. 223/2006 - also known as the Bersani Decree - converted with modifications by Law No. 248 of 4 August 2006 introduced, inter alia, commitment decisions into the Italian legal framework by including article 14-ter in the Competition Act.39 The Italian commitment decisions expressly refer to the European model so that the ICA has to apply the device under discussion within the limits of the European legal framework.40

In line with the Italian administrative case law a finding is required when the infringement appears unprecedented, when the market context is changed or when the investigation concerns hard-core restrictions.41 Accordingly, the ICA cannot issue commitment decisions in case of cartels.

In order to implement procedures for article 14-ter of the Competition Act, the ICA issued the Resolution of 6 September 2012, No. 23863, which follows the related European procedures.42 According to these procedures, the investigated undertakings may try to interrupt the investigation launched by the ICA, submitting legally-binding commitments as to their future behaviour capable of eliminating the antitrust concerns investigated by the ICA. The ICA's assessment of the commitments concerns the technical suitability of the submitted proposal to remove the issues under investigation and the opportunity to terminate the kind of infringement under discussion without making a finding as to whether there has been a competition law infringement.

So far, the ICA has accepted commitments in 70 cases. Of these, 27 regard investigations concerning hypothesis of anticompetitive agreements and 43 concern cases of alleged abuses of dominant position. This statistic appears coherent with the above-mentioned limits regarding the hard-core restrictions.

In the 2009-2016 period, the ICA adopted 65 infringement decisions including both abuses of dominant position and anticompetitive agreements and 49 commitment decisions. In the light of this, it is clear that in the 2009-2016 period the commitment decisions represented a very significant part of the ICA's enforcement. As observed, this could mean that in the said period the ICA used this device also with reference to not so relevant cases (eg, I681). In the same manner, the ICA could also resort to the commitment decisions when the investigation regarded significant hypotheses of infringement (eg, I651).43

In order to better understand this data, it seems useful to compare them with the practice of other European Authorities in the same periods. As it is well known, the application of commitment decisions by the ICA was largely more significant in the EU, Spain and Germany.44

In 2016 and in the first five months of 2017 the ICA has made a great use of commitment decisions in cases of alleged abuses of dominant position. Indeed, the ICA issued two commitment decisions in 201645 and three in 2017.46 On the contrary, only one case47 of alleged anticompetitive agreement has been closed with commitment in 2016 and none in 2017.

Private enforcement

Third parties that have suffered a prejudice as a result of unlawful behaviour can bring private actions before civil courts to be indemnified for the loss they have suffered. Private actions for damages can either be based on the ICA's decision (as a follow-on action) or independent from it (as a stand-alone action).

As seen above, Directive 2014/104/EU on antitrust damages actions has been transposed in Italy by means of the Legislative Decree No. 3/2017 (the Decree), published in the Official Journal No. 15, dated 19 January 2017.

The Decree introduces new substantive and procedural rules in Italy aiming at implementing and harmonising, at an EU, level the right to claim full compensation for antitrust damages. The main new features introduced by the Decree relate to the following:

  • 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 have the power to order disclosure of evidence included in the files of a competition authority, but a number of restrictions apply in this case which are aimed at safeguarding the effectiveness of the public enforcement of competition law. National courts cannot at any time order a party to disclose leniency statements and settlement submissions.
  • Binding effects of the decisions of the ICA. The infringement of competition law found by a final decision (ie, a decision that can no longer be appealed by ordinary means) of the ICA or by a review court (ie, an Italian administrative court empowered by ordinary means of appeal to review the 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; it does not cover 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.
  • Limitation period. The limitation period for bringing actions for damages before a national court in Italy shall be five years and it 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 behaviour 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 apply to damages actions brought against small or medium-sized enterprise (SMEs), or against undertakings or persons who have been granted immunity from fines by a competition authority under leniency programme. The five-year 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.
  • Joint and several liabilities. The Decree introduces, by way of derogation from the rule stating the joint and several liability of all the infringers who caused harm through joint behaviour, some partial exemptions in favour of SMEs 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. The defendant in an action for damages can invoke, as a defence 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 defence). 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. 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; and the 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 with regard to the need to safeguard 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 parties and third parties that 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 specialised business courts of Milan (for all of northern Italy), Rome (for all of central Italy and Sardinia) and Naples (for all of southern Italy).

As far as we know,48 the number of civil actions related to anticompetitive agreements in Italy continued to be limited.

However the adoption of the Decree could likely increase the number of actions for damages in the next future.

One of the most significant and recent action for damages is the action, launched in 2014, based on the ICA's decision finding that Roche and Novartis infringed article 101 TFEU by participating in an anticompetitive agreement in the market for ophthalmic drugs used to treat some serious vascular eyesight conditions, including age-related macular degeneration (AMD). On this basis, the ICA fined the above said companies for collusion in an attempt to stop the use of Roche's Avastin cancer drug as a treatment for an eye disease. The illegal agreement benefited Novartis' Lucentis drug, which is more expensive than Avastin. In light of this, the ICA imposed on Roche and Novartis fines totalling respectively €90.5 million and €92 million.

Indeed, in May 2014 Italy's health ministry said in a statement that it is seeking compensation from Roche and Novartis after the ICA's decision. Specifically, the ministry quantified the harm as €45 million in 2012 and €540 million in 2013, and it predicted the harm to be €615 million in 2014.

Novartis and Roche have challenged the ICA's decision before the TAR Lazio49 which has confirmed the ICA decision. The appeal lodged by the two companies against such TAR Lazio decision has been suspended because of the presentation by the Council of State50 of a preliminary ruling before the European Court of Justice.

With regard to class actions, it seems useful to highlight that this kind of device should have been permitted in Italy as of January 2010 with reference to illicit conduct realised after 15 August 2009. Pursuant to article 140-bis of Legislative Decree No. 206 of 6 September 2005, No. 206 (Italian Consumer Code) class actions could be brought by any consumer or user seeking damages or declaratory relief for a violation of rights that is ‘homogeneous' to those suffered by other consumers or users that arise from certain actionable breaches of contract or torts, including anticompetitive activities.

The Parliament has discussed a bill to repeal article 140-bis and set forth new provisions. First of all, the said bill suggests moving the class action's provisions in the Italian Code of Civil Procedure in order to make this device an instrument of protection available to anyone (business or consumer) that has been damaged by a mass tort. This point appears consistent with the proposal to bring the class actions before the specialized business courts. In addition, pursuant to the above said proposal the class action would be no longer actionable only in a limit number of cases. Finally, even if the structure remain opt-in based, the proposal provides the possibility to join, not only after the ruling that admits the class action, but also after the final judgement rendered by the Court within the time limit fixed by the decision which cannot exceed 180 days.51 The proposal is still under review by the Parliament.

It should be noted that the new rules on damages actions provided for by Legislative Decree No. 3/2017 apply to class actions also.

To date, as far as we know, the only antitrust class action declared admissible has been launched against a group of ferries involved in an investigation for alleged anticompetitive agreement. The said investigation was closed on June 2013 ascertaining that the companies Moby, SNAV, Grandi Navi Veloci and Marinvest entered into an agreement aimed at increasing prices for their passenger transportation services during summer 2011 on the routes Civitavecchia-Olbia, Genoa-Olbia and Genoa-Porto Torres. For these conducts, the ICA resolved to sanction the companies with a fine amounting to €8,107,445, which kept into account the companies' loss for the financial year.52

Nonetheless the TAR Lazio upheld the appeal of the ferry companies against the ICA's decision53 and the decision of TAR Lazio has been confirmed by the Council of State.54 Therefore it is likely that the class action at issue will be dismissed.

The National Confederation for the Craft Sector and Small and Medium-Sized Enterprises has declared its promotion of a class action, pursuant to article 140-bis, against truck producers who were sanctioned by the European Commission with its decision in Case AT.3982455 (19 July 2016), seeking compensation for damages suffered by the truck drivers/truck driver companies due to the alleged cartel as ascertained by the EC.56

Notes

  1. 1 See ICA, I792 - Gare ossigenoterapia e ventiloterapia, Decision of 21 December 2016, No. 26316, in Boll. Uff. No. 2/2017; ICA, I710 - Usi in materia di mediazione immobiliare, Decision of 15 December 2016, No. 26285, in Boll. Uff. No. 47/2016; ICA, I789 - Agenzie di modelle, Decision of 26 October 2016, No. 26229, in Boll. Uff. No. 40/2016; ICA, I783 - Accordo tra operatori del settore vending, Decision of 8 June 2016, No. 26064, in Boll. Uff. No. 21/2016; ICA, I790 - Vendita diritti televisivi serie A 2015-2018, Decision of 19 April 2016, No. 25966, in Boll. Uff. No. 13/2016; ICA, I779 - Mercato dei servizi turistici-prenotazioni alberghiere on line, Decision of 23 March 2016, No. 25940, in Boll. Uff. No. 11/2016; ICA, I777 - Tassi sui mutui nelle Province di Bolzano e Trento, Decision of 24 February 2016, No. 25882, in Boll. Uff. No. 6/2016.
  2. See ICA, I802 - RC Auto, Decision of 7 December 2016, No. 26263, in Boll. Uff. 45/2016; ICA, I797 - Consiglio Notarile di Roma, Velletri e Civitavecchia/Delibera in tema di distribuzione del lavoro nella dismissione pubblica, Decision of 19 April 2016, No. 25983, in Boll. Uff. 14/2016; ICA, I796 - Servizi di supporto e assistenza tecnica alla PA nei programmi cofinanziati dalla UE, Decision of 15 March 2016, No. 25919, in Boll. Uff. 9/2016; ICA, I794 - ABI/SEDA, Decision of 21 January 2016, No. 25813, in Boll. Uff. 1/2016.
  3. ICA, I710 - Usi in materia di mediazione immobiliare, Decision of 15 December 2016, No. 26285, in Boll. Uff. No. 47/2016; ICA, I797 - Consiglio Notarile di Roma, Velletri e Civitavecchia/Delibera in tema di distribuzione del lavoro nella dismissione pubblica, Decision of 19 April 2016, No. 25983, in Boll. Uff. 14/2016.
  4. ICA, I799 - Tim-Fastweb-realizzazione rete in fibra, Decision of 1 February 2017, No. 26399, in Boll. Uff. 5/2017; ICA, I801A - Servizio di prenotazione del trasporto mediante Taxi - Roma, Decision of 18 January 2017, No. 26340, in Boll. Uff. 3/2017; ICA, I801B - Servizio di prenotazione del trasporto mediante Taxi - Milano, Decision of 18 January 2017, No. 26345, in Boll. Uff. 3/2017; ICA, I803 - Condotte restrittive del consiglio notarile di Milano, Decision of 11 January 2017, No. 26327, in Boll. Uff. 2/2017; ICA, I804 - Admiral entertainment-Lottomatica Holding/Newco, Decision of 25 January 2017, No. 26378, in Boll. Uff. 5/2017; ICA, I805 - Prezzi del cartone ondulato, Decision of 22 March 2017, No. 26476, in Boll. Uff. 12/2017; ICA, I806 - Affidamento appalti per attività antincendio boschivo, Decision of 14 March 2017, No. 26445, in Boll. Uff. 11/2017; ICA, I808 - Gara Consip Fm4 - accordi tra i principali operatori del facility management, Decision of 21 March 2017, No. 26454, in Boll. Uff. 11/2017; ICA, I811 - Finanziamenti auto, Decision of 28 April 2017, No. 26567, in Boll. Uff. 18/2017; ICA, I812 - FIGC - Regolamentazione dell'attivita' di direttore sportivocollaboratore della gestione sportiva-osservatore calcistico e match analyst, Decision of 4 May 2017, No. 26603, in Boll. Uff. 19/2017.
  5. See ICA, I710 - Usi in materia di mediazione immobiliare, Decision of 15 December 2016, No. 26285, in Boll. Uff. No. 47/2016; ICA, I790 - Vendita diritti televisivi serie A 2015-2018, Decision of 19 April 2016, No. 25966, in Boll. Uff. No. 13/2016; ICA, I802 - RC Auto, Decision of 7 December 2016, No. 26263, in Boll. Uff. 45/2016; ICA, I796 - Servizi di supporto e assistenza tecnica alla PA nei programmi cofinanziati dalla UE, Decision of 15 March 2016, No. 25919, in Boll. Uff. 9/2016; ICA, I808 - Gara Consip Fm4 - accordi tra i principali operatori del facility management, Decision of 21 March 2017, No. 26454, in Boll. Uff. 11/2017.
  6. See ICA, I789 - Agenzie di Modelle, Decision of 18 March 2015, No. 25381, Boll. Uff. No. 10/2015.
  7. ICA, Notice on the non-imposition and reduction of fines pursuant to Article 15, Law No. 287/1990, Decision of 15 February 2007, No. 16472, in Boll. Uff. No. /2007, and modified with Decisions of 6 May 2010, No. 21092, 31 January 2013, No. 24219 and 31 July 2013, No. 24506, in Boll. Uff. No. 35/2013.
  8. See ICA, Notice on the application of Article 14-ter, Law No. 287/1990, Decision of 6 September 2012, No. 23863, in Boll. Uff. No. /2012.
  9. See ICA, A495 - Gara Tpl Padova, Decision of 20 July 2016, No. 26129, in Boll. Uff. No. 28/2016; ICA, A503 - Società iniziative editoriali/servizi di rassegna stampa nella provincia di Trento, Decision of 7 February 2017, No. 26412, in Boll. Uff. No. 7/2017; ICA, A503 - Società iniziative editoriali/servizi di rassegna stampa nella provincia di Trento, Decision of 22 March 2017, No. 26498, in Boll. Uff. No. 13/2017.
  10. The said term, which is not peremptory, is aimed at avoiding dilatory conduct: see M Libertini, ‘La decisione di chiusura dei procedimenti per illeciti antitrust a seguito di impegni delle imprese interessate (art. 14-ter, l. 10 ottobre 1990, No. 287)', in Giornale di diritto amministrativo, 2006, p. 1286; see, ex pluribus, TAR Lazio, sec. I, 7 April 2008, No. 2902.
  11. ICA, I772 - Mercato del Calcestruzzo Friuli Venezia Giulia, Decision of 25 March 2015, No. 12/2015, in Boll. Uff. No. 12/2015.
  12. ICA, I789 - Agenzie di moda, Decision of 18 March 2015, No. 25381, in Boll. Uff. No. 10/2015.
  13. ICA, ICA, I701 - Vendita al dettaglio di prodotti cosmetici, Decision of 15 December 2010, in Boll. Uff. No. 49/2010
  14. See TAR Lazio, sec. I, 17 November 2011, No. 8945.
  15. ICA, I789 - Agenzie di modelle, Decision of 26 October 2016, No. 26229, in Boll. Uff. No. 40/2016
  16. ICA, I733 Servizi di agenzia marittima, Decision of 22 February 2012, No. 23338, in Boll. Uff. No. 9/2012.
  17. TAR Lazio, sec. I, 15 January 2013, No. 363.
  18. The Council of State, sec. VI, 8 July 2014, No. 3464.
  19. The Council of State, sec. VI, 18 May 2015, No. 2514.
  20. The Council of State, sec. VI, 29 January 2016, No. 362.
  21. See ICA. I722 Logistica internazionale, Decision of 15 June 2011, No. 22521, in Boll. Uff. No. 24/2011.
  22. See TAR Lazio, sec. I, 29 March 2012, No. 3034.
  23. See the Council of State, sec. VI, 4 September 2014, order No. 4508.
  24. See ECJ, C 428/14, 20 January 2016.
  25. See the Council of State, sec. VI, 20 October 2016, No. 4374.
  26. See, ICA decision of 22 December 2014, No. 25152 - Guidelines on the method of setting fines according to article 15 of the Competition Act.
  27. See, ex multis, ICA, I733 - Servizi di agenzia marittima, Decision of 22 February 2012, No. 23338, in Boll. Uff. No. 9/2012; ICA, I731 - Gare assicurative ASL e aziende ospedaliere campane, Decision of 28 September 2011, No 22838, in Boll. Uff. No. 39/2011; ICA, I722 Logistica internazionale, Decision of 15 June 2011, No. 22521, in Boll. Uff. No. 24/2011.
  28. See the Council of State, sec. VI, 25 May 2012, No. 3058.
  29. See TAR Lazio, sec. I, 11 June 2013, No. 5822. See also TAR Lazio, sec. I, 6 May 2015, No. 6471; TAR Lazio, sec. I, 1 June 2015, No. 7755.
  30. See ICA, I792 - Gare ossigenoterapia e ventiloterapia, Decision of 21 December 2016, No. 26316, in Boll. Uff. No. 2/2017; ICA, I710 - Usi in materia di mediazione immobiliare, Decision of 15 December 2016, No. 26285, in Boll. Uff. No. 47/2016; ICA, I789 - Agenzie di modelle, Decision of 26 October 2016, No. 26229, in Boll. Uff. No. 40/2016; ICA, I783 - Accordo tra operatori del settore vending, Decision of 8 June 2016, No. 26064, in Boll. Uff. No. 21/2016; ICA, I790 - Vendita diritti televisivi serie A 2015-2018, Decision of 19 April 2016, No. 25966, in Boll. Uff. No. 13/2016; ICA, I779 - Mercato dei servizi turistici-prenotazioni alberghiere on line, Decision of 23 March 2016, No. 25940, in Boll. Uff. No. 11/2016; ICA, I777 - Tassi sui mutui nelle Province di Bolzano e Trento, Decision of 24 February 2016, No. 25882, in Boll. Uff. No. 6/2016.
  31. See ICA, I791 - Mercato del noleggio autoveicoli a lungo termine, Decision of 30 March 2017, No. 26519, in Boll. Uff. No. 14/2017; ICA, I794 - ABI/SEDA, Decision of 28 April 2017, No. 26565, in Boll. Uff. No. 19/2017; I804 - Admiral Entertainment-Lottomatica Holding/Newco, Decision of 4 May 2017, No. 26602, in Boll. Uff. No. 19/2017.
  32. TAR Lazio, sec. I, No. 6044/2012; TAR Lazio, Sec. I, No. 3268/2012; the Council of State, sec. VI, No. 3013/2011; the Council of State, sec. VI, No. 6469/2007.
  33. See ICA, I731 - Gare assicurative asl e aziende ospedaliere campane, Decision of 28 September 2011, No 22838, in Boll. Uff. No. 39/2011.
  34. See TAR Lazio, sec. I, 3 July 2012, No. 6044.
  35. See the Council of State, sec. VI, 30 giugno 2016, No. 2947.
  36. See TAR Lazio, sec. I, 14 October 2016, No. 1307.
  37. ICA, I785 - Gara CONSIP Servizi di Pulizia nelle Scuole, Decision of 22 December 2015, No. 25802, in Boll. Uff. No. 50/2015.
  38. See ICA, Notice dated 23 December 2014 available at the following link modernisationagcm.it/normativa/concorrenza/7450-comunicazione-avente-ad-oggetto-lesclusione-dei-raggruppamenti-temporanei-di-imprese-qsovrabbondantiq-dalle-gare-pubbliche.html.
  39. The same Decree has introduced also the leniency and the interim measures in the Italian legal framework.
  40. Indeed, only one difference exists between the two disciplines consisting of the quarterly period starting from the launch of the related investigation by which the concerned undertakings can submit a commitment proposal. The said term, which is not peremptory, is aimed to avoid dilatory conducts: see M Libertini, ‘La decisione di chiusura dei procedimenti per illeciti antitrust a seguito di impegni delle imprese interessate (art. 14-ter, l. 10 ottobre 1990, No. 287)', in Giornale di diritto amministrativo, 2006, p. 1286; TAR Lazio, sec. I, 23 January 2008, No. 2902.
  41. See ICA, I646 - Produttori vernici marine, Decision of 15 November 2006, No. 16151, in Boll. Uff. No. 46/2006; ICA, I649 - Produttori di pannelli truciolati in legno, Decision of 17 May 2007, No. 16835, in Boll. Uff. No. 20/2007; TAR Lazio, sec. I, 29 December 2007, No. 14157; the Council of State, sec. VI, 23 March 2009, No. 1190; TAR Lazio, sec. I, 2 December 2009 No. 12319. However, in some cases of cartels concerning prices the ICA applied the device under discussion: see ICA, I661 - Accordi interbancari Abi/Co.ge.ban, Decision of 18 April 2007, No. 16709, in Boll. Uff. No. 14/2007; ICA, I668 - Ordine dei medici veterinai di Torino, Decision of 21 February 2007, No. 16500, in Boll. Uff. No. 8/2007. To this regard see L Di Via, ‘Le decisioni in materia di impegni nella prassi decisionale dell'Autorità Garante', in Mercato Concorrenza Regole, 2007, p. 229.
  42. It amended the previous Resolution of 12 October 2006, No. 16015, as integrated by the Resolution of 11 February 2011, No. 22089.
  43. See ICA, I681 - Prezzi dei carburanti in rete, Decision of 20 December 2007, No. 17754, in Boll. Uff. No. 48/2007; ICA, I651 - ADS Accertamenti Diffusione Stampa - Audipress, Decision of 21 February 2007, No. 16474, in Boll. Uff. No. 7/2007; ICA, A357 - Tele2/Tim-Vodafone-Wind, Decision of 24 May 2007, No. 16871, in Boll. Uff. No. 20/2007. See also F Ghezzi, ‘L'applicazione del diritto antitrust sotto la Presidenza Catricalà: obiettivi e priorità nella disciplina delle intese', 2009, available at www.antitrustisti.net; G Demartini, ‘La definizione del procedimento antitrust tra esigenze di efficienza e tutela degli interessi coinvolti, in Diritto del Commercio Internazionale', 23, 2009, p. 922; and A Pera and G Codacci Pisanelli, ‘Decisioni con impegni e private enforcement nel diritto antitrust' in Mercato Concorrenza Regole, 2012, I, p.773 and f.
  44. See A Pera and G Codacci Pisanelli, ‘Decisioni con impegni e private enforcement nel diritto antitrust', in Mercato Concorrenza Regole, 2012, I, p. 74 and f; and www.osservatorioantitrust.eu/it.
  45. See ICA, A486 - Enel Distribuzione-rimozione coatta dispositivi smart metering, Decision of 6 September 2016, No. 26167, Boll. Uff. 31/2016; ICA, A482 - E-Class/Borsa Italiana, Decision of 8 April 2015, No. 25859, Boll. Uff. 4/2016.
  46. See ICA, A489 - Nuovo Imaie-condotte anticoncorrenziali, Decision of 13 April 2016, No. 26497, Boll. Uff. 13/2017; ICA, A490 - Software Processo Civile Telematico, Decision of 18 January 2017, No. 26530, Boll. Uff. 3/2017; ICA, A498A - Enel-prezzi servizi di dispacciamento area Brindisi, Decision of 4 May 2017, No. 26562, in Boll. Uff. 17/2017.
  47. See ICA I779 - Mercato dei Servizi Turistici-Prenotazioni Alberghiere On Line, Decision of 23 March 2016, No. 25940, Boll. Uff. 11/2016.
  48.  In Italian legal framework there is no publicity for the actions for damages.
  49. The TAR Lazio confirmed the ICA's decision: see TAR Lazio, sec. I, 2 December 2014, No. 12168. The appeal before the Council of State is pending.
  50. See the Council of State, sec. VI, 11 March 2016, No. 966.
  51. modernisationsenato.it/leg/17/BGT/Schede/FascicoloSchedeDDL/ebook/45728.pdf.
  52. See ICA, I743 - Tariffe traghetti da/per la Sardegna, Decision of 11 June 2013 No. 24405, in Boll. Uff. No. 25/2013.
  53. See TAR Lazio, sec. I, 7 May 2014, No. 4730.
  54. See the Council of State, sec. VI, 4 September 2015, No. 4123.
  55. See European Commission, AT.39824 - Trucks, Decision of 19 July 2016.
  56. Please see: modernisationcna.it/notizie/promossa-unazione-legale-contro-il-cartello-delle-case-costruttrici-di-camion-adesioni-entro#.WSL7Kv6KDIV.

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