- Africa and the Middle East
- Asia Pacific
- Latin America
- North America
- GCR 100
- Rating Enforcement
Anti-competitive behaviours such as price fixing, sharing markets 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.
Following a period of calm, the level of enforcement against cartels and anti-competitive agreements has increased dramatically since 2013. In 2013, the ICA opened 15 new investigation proceedings related to anti-competitive agreements,1 and in the first five months of 2014 it opened 11 new cases.2 The scope of the scrutiny of the ICA has been very wide; it has prosecuted not only cartels but also vertical agreements, exchange of information, inter-professional agreements and public procurement cases.
Almost all the above cases have been opened further to a complaint; none were opened following a leniency application. The apparent failure of the leniency programme remains unsolved. The proposal of the ICA dated 2 October 2012 to the Italian parliament3 to boost the leniency programme has not been adopted.
Finally, records from the first half of 2014 show significant actions for damages (filed or announced) related to cartel cases.
Similarly to article 101 (1) of the Treaty on the Functioning of the European Union (TFEU), article 2 (2) of Law No 287 of 10 October 1990 (the Competition Act) prohibits agreements that directly or indirectly fix purchase or selling prices or any other trading conditions, share markets or sources of supply. Pursuant to article 1 (4) of the Competition Act, Italian competition rules shall be interpreted in accordance with the principles of European Community competition law.
The ICA and national Civil Courts are responsible for the enforcement of the cartel prohibition in Italy. In January 2012, special sections were established within the Italian Civil Courts for the enforcement of national and European competition law. The jurisdiction enjoyed by the ICA and the Courts is determined by the ‘effect rule’. Article 2 of the Competition Act applies to cartels with anti-competitive effects, which may include in particular the prevention, restriction or distortion of competition on the Italian market. Article 2 applies irrespective of whether the conduct occurred abroad, or is put in place by undertakings which are not based in Italy. Article 101 TFEU applies when the cartel may affect trade between member states (recently, the ICA applied article 101 in the case I745, Consigli Degli Ordini Degli Avvocati/Diniego All’esercizio Di Avvocato).4
Cartels in breach of article 2 of the Competition Act and 101 TFEU are void and unenforceable; administrative fines are applicable and damage actions can be pursued by third parties.
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 per cent of the undertaking’s turnover from the previous financial year.
The ICA’s decisions may be challenged before the Administrative Court of Latium, the decisions of which may be appealed before the Supreme Administrative Court.
Third parties that have suffered a prejudice as a result of unlawful behavior 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). The Civil Courts are not bound by the ICA’s decisions, as they benefit from rebuttable proof and defendants can rely upon evidence to rebut the decision.5 Italian law does not provide for punitive damages, instead it only provides for compensatory damages.
The Civil Courts and the ICA are also granted the power to order interim measures.
Although there are no criminal sanctions 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 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 terminate proceedings if, within three months from the start of the investigation, the companies under investigation offer commitments to correct the anti-competitive conduct. In this situation, according to article 14-ter of the Competition Act, the ICA can make the commitments binding and close the proceedings without making an infringement finding.
Recent changes or proposal for change
The protection of competition in the public procurement sector is one of the priorities of the ICA because this sector involves public resources and an important share of the gross national product depends on it. In October 2013, the ICA published a Guide for the contracting authorities in order to help them in detecting antitrust infringements committed by the participants in the public tender. The contracting authorities are asked to report to the ICA if they detect one of the following suspected behaviours listed in the Guide:
- boycott (no valid offers are submitted in the public tender);
- fake offers;
- joint offers by temporary business associations or subcontracting agreements;
- bid-rigging and market partition; or
- anomalies in the offers (eg, similarities in different offers).
Following a report, if the ICA finds other suspected elements, it will open a proceeding. The Guide seems to be a useful instrument to fight cartels in the public procurement sector. However, it is necessary to make a distinction between the joint offers by temporary business associations or subcontracting agreements and all the other suspected behaviours. While the latter have a clear anti-competitive nature and should be considered a restriction of competition by object, the joint offers by temporary business associations or subcontracting agreements are typical arrangements provided by the law itself. The ICA deems that they could hide an anti-competitive agreement if they are entered into by direct competitors that could participate in the public tenders autonomously.
In the coming months, the ICA will also adopt its own guidelines on the method of setting antitrust fines. On 15 May 2014, the ICA opened the consultation on the draft of the guidelines inviting the interested parties to submit comments.
Among the most interesting differences between the draft and the Guidelines of the EU Commission are a specific paragraph dedicated to the fines in antitrust cases concerning public tenders, a time limit of five years within which repeat anti-competitive behvaiour can be deemed recidivist and an express provision on the reduction of the fines for the undertakings that have adopted an antitrust compliance programme. The draft provides for a reduction of the fine up to 15 per cent for undertakings that have adopted and applied a tailor-made compliance programme according to the best national and European practice. See ‘The Sanctions’, below.
The Italian leniency programme in the light of 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, which have been amended in 2013. The Italian leniency programme mainly follows the European Competition Network (ECN) model and it differs in certain aspects from the leniency treatment granted by the European Commission (EU Commission).
Although the leniency programme is generally intended to cover secret horizontal agreements such as price-fixing and market sharing, in its Guideline, the ICA does not exclude in principle the application of the leniency programme to cartels which have vertical elements.
The first company to inform the ICA of the existence of a secret cartel that provides decisive evidence enabling the ICA to carry out targeted inspections can obtain full immunity from fines. Other undertakings that subsequently provide information and evidence relating to the cartel, may qualify for a reduction in the fines that would otherwise be imposed. Generally, the reduction will not exceed 50 per cent 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,6 Procter & Gamble qualified as the third leniency applicant and was granted a 40 per cent discount in the sanction awarded; whereas, in the International Freight Forwarders cartel, DHL qualified as the third leniency applicant but was granted a 49 per cent reduction.
In order to determine the appropriate level of fine reduction, the ICA takes into account when the evidence was submitted in relation to the phase of the proceedings and the level of cooperation provided by other undertakings, and the evidentiary value of the information and documents that 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 confess their participation in the secret cartel and support their statements with evidence (eg, Administrative Court of Latium, section I, No. 8945/2011, Cosmetic Products).
In its recent judgement in the case I733 Maritime Agents,7 the Administrative Court of Latium8 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 Court 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 Supreme Administrative Court has upheld the judgment.9
Useful indications on the priority of leniency applications simultaneously filed with the EU Commission and the ICA have been provided by the Administrative Court of Latium within the appeals against the ICA’s decision I722 International Logistics.
The main point made by the Administrative Court of Latium originated from the appeal of DHL, which first applied for leniency with the EU Commission and then with the ICA. The Court ruled that a leniency applicant with the EU Commission does not automatically qualify for leniency in other European member states.
The ruling stresses a very important point for companies wishing to fix their priority in multi-jurisdictional requests for leniency, which is that leniency applicants should file applications with all the national competition authorities possibly involved.
The Competition Act awards the ICA the power to impose sanctions in cases of antitrust infringements. Pursuant to article 15, where the ICA ascertains that there has been an antitrust infringement, it shall order the undertakings concerned to terminate the infringement and ‘in the most serious cases it may decide, depending on the gravity and the duration of the infringement, to impose a fine of up to 10 per cent of the turnover of each undertaking or entity during the prior financial year.’
The Competition Act also provides for sanctions when there is a lack of cooperation with the investigation. Article 14 states that the ICA may impose a sanction up to €25,822 on anyone 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 sanctions contained in Law No. 689/1981 applies to the fines imposed by the ICA insofar as it is compatible with the Act. The case law10 has clarified that the rules in Law No. 689/1981 set 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.
In accordance with the obligation to apply Italian competition rules in accordance with the principles of European Community competition law, the ICA has refined its methods to calculate the amount of fines by applying the EU Commission Guidelines. 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 by reference to the number of years the infringement lasted. Finally, it applies the aggravating or mitigating circumstances provision.
After many years in which the ICA has set its fines according to the Guidelines of the EU Commission, it now intends to adopt its own specific guidelines. The new draft is consistent with the Guidelines of the EU Commission with some minor differences (highlighted above). It mirrors the structure of the Guidelines of the EU Commission: the first part deals with the basic amount of the fine, while the second part deals with the adjustments to the basic amounts.
As regards the reduction in fines for financial hardship, the ICA already deviates from the Guidelines of the EU Commission by granting the reduction even though the company only made losses in the previous fiscal year, whereas under EU law there must have been three consecutive years of losses.11 Pursuant to the new draft, the losses in the previous financial years will not be enough to obtain the reduction; the undertakings will have to prove that the payment of the sanction will irreparably endanger their viability, causing their exit from the market.
The new draft also provides for a reduction of fines for commitments offered by the parties when these are aimed at eliminating or reducing the effects of infringements. This mitigating circumstance is not a novelty for the ICA, which has already been applying it to date 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 per cent for every six months of delay after the deadline to pay the original fine.
In a recent case,12 the Supreme Administrative Court established that in cases where the original fine has been annulled by the first instance judgment and is later restored by the appeal judgment, the fine for the delay is charged even for the period during which the original fine was annulled. According to the Court, 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. However, in a later judgment, the Administrative Court of Latium stated that a fine for the delay shall not be imposed for the period between the annulment of the sanctions and its reinstatement.13
In 2013, the ICA concluded nine proceedings14 regarding potential infringements of article 2 of the Italian Competition Act and article 101 TFEU, while one15 has been concluded in the first five months of 2014. In seven of these 10 cases, it ascertained that there had been an infringement and imposed fines on the undertakings involved for a total amount of about €190 milion. The fines imposed on a single undertaking ranged from €1,000 to €90 million.
In the case I745 Bar Associations, the bar associations of several Italian cities were fined just €1,000 each when they imposed further conditions for the registration of lawyers qualified in other member states in addition to the ones provided for by EU law. The ICA imposed a nominal fine because the bar associations did not enforce the stricter regime and as soon as the proceeding were opened they revoked the additional requirements. The ICA also took into account that there were no relevant precedents.
The highest fine thus far in 2013 was €182 million, which was imposed in the case I760 Roche-Novartis/Farmaci Avastin E Lucentis, in which the ICA set the proportion of the value of the relevant sales at a level of between 25–30 per cent in order to calculate the basic amount of the fine. This particularly high percentage (the limit set in the new draft is 30 per cent) is due to the fact that the unlawful conducts of the investigated undertakings made the medical treatment of eye diseases more expensive for the National Health System and consequently more difficult for the patients. The fine was also increased by 50 per cent with the aim of acting as a deterrent because the groups of the infringers had a particularly large turnover beyond the sales of goods and services to which the infringement related. The ICA held the parent companies jointly liable with their Italian subsidiaries for the payment of the fines and their global turnovers were taken into account to establish whether the ceiling of 10 per cent for the maximum fine was reached or not.
In accordance with article 261 TFEU, article 134 of the Italian code of Administrative Procedure states that the sanctions 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 cases16 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. In the appeal against the ICA’s decision I731 Insurance tenders for Compania ASL [local health authority] and hospitals,17 the Administrative Court of Latium found that the ICA had failed to provide sufficient and clear reasoning for the imposition of an aggravating circumstance.18
The Law Decree No. 223/2006 – also known as the Bersani Decree – converted with modifications by Law 4 August 2006, No. 248/2006, introduced the commitment decisions into the Italian legal framework, among other things.19
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.20
In order to implement procedures for article 14-ter of the Italian Competition Law, the ICA has issued the Resolution of 6 September 2012, No. 23863, which follows the related European procedures.21
In light of this, the investigated undertakings may try to interrupt the investigation launched by the ICA, submitting commitment decisions capable of eliminating the antitrust criticalities subjected to the inquiry. The ICA’s assessment concerns the technical suitability of the submitted proposal to remove the criticalities under investigation and the opportunity to terminate the kind of infringement under discussion without any ascertainment. Regarding the latter profile, under Italian administrative case law an ascertainment is required when the infringement appears unprecedented, when the market context is changed or when the investigation concern hard-core restrictions (ie, cartels).22
So far, the ICA has accepted a commitments proposal in 53 cases. Of these, 18 regard investigations concerning hypothesis of anti-competitive agreements and 35 concern cases of alleged abuses of dominant position. This statistic appears coherent with the above-mentioned limits regarding the application of the device under discussion (hard-core restrictions).
It is also possible to single out two distinct periods in the application of the device under discussion. The first, from 2006 to 2010, is characterised by a large use of it; and the second, 2011 to the present date, in which the ICA resorted more frequently to sanctions.
In the 2006–2011 period, the ICA adopted 41 sanction decisions. In light of this, it is clear that in the 2006–2011 period the commitment decisions represented the main 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).23
On the contrary, in the 2011–present period, the ICA renounced to massively resort to this device, preferring sanction decisions. Indeed, during this time, the ICA adopted 36 sanction decisions (in nine, 19 and eight cases in 2011, 2012 and 2013, respectively) compared with nine commitment decisions (in five, three and one cases in 2011, 2012 and 2013, respectively). The ICA’s trend appears consistent with the aim of protecting the deterrent function of the sanctions.24
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.25
However, during the first part of 2014, the ICA seems again to make extensive use of the device under discussion. Indeed, on 30 May 2014, the ICA decided to close without any ascertainment the investigation launched last June in order to verify whether eight insurance groups realised eight vertical agreements aimed at obstructing the workability of agents with a mandate from more than one insurance company exercise.26 In the same manner, the ICA decided to publish commitments offered by the following:
- Enervit SpA, during the investigation launched last November with the aim of verifying whether Enervit SpA had infringed the prohibition of anti-competitive vertical agreement, imposing on its retailers and wholesalers resale price restrictions, absolute exclusive arrangements and permanent non-compete obligations;27
- Power-One Italy Spa, during the proceeding launched last October, aimed at verifying whether Power-One Italy Spa had infringed article 101 of TFEU, imposing resale price restrictions on its retailers;28
- Wind Telecomunicazioni SpA and Telecom Italia SpA, during the investigation from last December, since the available documentation would have highlighted that Telecom Italia and Wind Telecomunicazioni had signed with some multibrand dealers several complementary agreements providing for best conditions, subject to the unaltered retention of the offer within the store;and
- Centrale Italiana Scarl, COOP Italia Scarl, Despar Servizi, Gartico Scarl, Discoverde Srl and Sigma Società Italiana Gruppi Mercantili Associati Soc coop, during its investigation aimed at verifying the existence of an anti-competitive agreement between several supermarket chains for the creation of a common purchase supercentre, Centrale Italiana.29
It seems that in 2014 the ICA intends to make substantial use of commitment decisions with reference to vertical agreements.
As far as we know,30 the number of civil actions related to anti-competitive agreements in Italy continues to be very limited. In Italy, private enforcement continues to be mainly concentrated with reference to abuse cases.
The previous year appears consistent with this trend, with some significant exceptions. Among these exceptions, it needs to be taken into account the action for damages brought by Alitalia against Total SA, its subsidiary Total Aviazione Italia Srl and other third parties before the Tribunal of Rome in early 2013. This action is based on an Italian cartel for jet fuel and the estimated damages are nearly €908 million.31
In this context, 2014 started recording something new. Indeed, last March the ICA issued a decision finding that Roche and Novartis had infringed article 101 TFEU by participating in an anti-competitive agreement in the market for ophthalmic drugs used to treat some serious vascular eyesight conditions, including age-related macular degeneration. On this basis, the ICA fined the 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 €90.5 million and €92 million, respectively.
Even though Novartis and Roche are challenging the ICA’s decision before the Administrative Court of Latium, in May 2014, Italy’s health ministry said in a statement that it is seeking compensation from on Roche and Novartis after the ICA’s decision. Specifically, the ministry quantified the harm at €45 million in 2012, €540 million in 2013, and predicted €615 million in 2014.
With reference to the private enforcement’s discipline, as is known, pursuant to the Law No. 27/2012,32 competition damages actions (and related actions) based on both Italian (article 2 of the Italian Competition Law)33 and EU competition law (article 101 of TFEU) lodged after 20 September 2012 shall be brought before the new Companies Court (specialised chamber for matters concerning enterprises). The purpose of the above Law Decree was to concentrate the legal disputes before a reduced number of courts (12 tribunals instead of 164),34 with the object of reducing the time taken to conclude proceedings involving medium and large-sized companies and improving their competitiveness on the market.35
In this context, as of February 2014, due to the entry into force of the Law No. 9/2014,36 the jurisdiction on disputes concerning the subject matters indicated in article 3 of Legislative Decree No. 168/2003 (eg, antitrust matters) has been concentrated in the competence of the Commercial Court in all cases where it is part of the claim a foreign-based company. Under article 10 of the above-mentioned Law, if one of the parties to the case is a foreign-based company – even if the foreign company concerned has a branch office in Italy with permanent representation – the mandatory jurisdiction has been attributed to the above said specialised courts.
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 on 15 August 2009. Pursuant to article 140-bis of Legislative Decree No. 206/2005 (the 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 anti-competitive activities.
To date, as far as we know, only nine class actions have been deemed admissible37 and the Court has issued a final decision in only three cases,38 the main part of which were inadmissible.39 In addition, to date, only two antitrust class actions have been brought. The first one regarding the Microsoft case was declared inadmissible without entering into the merits of antitrust profiles. The second one was launched against a group of ferries involved in an investigation for alleged anti-competitive agreement. The investigation was closed on June 2013, ascertaining that the companies Moby, SNAV, Grandi Navi Veloci and Marinvest had entered into an agreement aimed at increasing prices for their passenger transportation services in the summer of 2011 on the Civitavecchia–Olbia, Genoa–Olbia and Genoa–Porto Torres routes. For these conducts, the ICA resolved to sanction the companies with a fine amounting to €8.1 million, which took into account the companies’ loss for the financial year.40 According to the publicly available information, this second class action is still to be declared admissible. However, in the meantime, the Italian Court of First Instance upheld the appeal of the ferry companies against the ICA’s decision.
Finally, concerning the right of access, a claimant may request to the ICA some documents which, in its view, are necessary to support its action. The ICA has historically been reluctant to grant such request, and according to the Italian administrative courts the ICA’s refusal was legitimate since the documents concerned contained confidential information that was not strictly necessary to support the related action for damages.41
However, in the past year, the ICA seems to have changed its original approach. In 2013, and in the first part of 2014, the ICA has accepted several requests to access its documents.
- See ICA, I760 – Roche-Novartis/Farmaci Avastin e Lucentis, Decision of 27 February 2014, No. 24207, in Boll Uff, No. 7/2013; ICA, I761 – Mercato dei servizi tecnici accessori, Decision of 27 March 2013, No. 24295, in Boll Uff, No. 14/2013; ICA, I559B – Mercato del calcestruzzo-rideterminazione sanzione, Decision of 22 May 2013, No. 24345, in Boll Uff, No. 23/2013; ICA, I689C – Organizzazione servizi marittimi nel golfo di Napoli, Decision of 30 May 2013, No. 24357, in Boll Uff, No. 24/2013; ICA, I702 – Agenti monomandatari, Decision of 5 June 2013, No. 24385, in Boll Uff, No. 24/2013; ICA, I765 – Gare gestioni fanghi in Lombardia e Piemonte, Decision of 11 June 2013, No. 24406, in Boll Uff, No. 25/2013; ICA, I763 – Servizi di cabotaggio marittimo stretto di Messina, Decision of 26 June 2013, No. 24427, in Boll Uff, No. 27/2013; ICA, I748 – Condotte restrittive del CNF, Decision of 16 July 2013, No. 24445, in Boll Uff, No. 30/2013; ICA, I762 – Unione mutualistica tra notai del Veneto, Decision of 31 July 2013, No. 24501, in Boll Uff, No. 33-34/2013; ICA, I738 – Restrizioni deontologiche Federazione Nazionale degli Ordini dei Medici Chirurghi e degli Odontoiatri, Decision of 3 September 2013, No. 24510, in Boll Uff, No. 36/2013; ICA, I766 – Inverter solari ed eolici – Imposizione prezzi minimi, Decision of 22 October 2013, No. 24577, in Boll Uff, No. 44/2013; ICA, I769 – Sanità privata nella Regione Abruzzo, Decision of 6 November 2013, No. 24598, in Boll Uff, No. 46/2013; ICA, I718 – Enervit-contratti di distribuzione, Decision of 20 November 2013, No. 24619, in Boll Uff, No. 49/2013; ICA, I768 – Centrale d’acquisto per la Grande Distribuzione Organizzata, Decision of 4 December 2013, No. 24649, in Boll Uff, No. 53/2013; ICA, I771 – Servizi di post-produzione di programmi televisivi rai, Decision of 10 December 2013, No. 24681, in Boll Uff, No. 53/2013. ↑
- See ICA, I772 – Mercato del calcestruzzo Friuli Venezia Giulia, Decision of 22 January 2014, No. 24750, in Boll Uff, No. 6/2014; ICA, I770 – Arca/Novartis-Italfarmaco, Decision of 29 January 2014, No. 24770, in Boll Uff, No. 7/2014; ICA, I759 – Forniture Trenitalia, Decision of 5 February 2014, No. 24781, in Boll Uff, No. 9/2014; ICA, I775 – Procedure di affidamento dei servizi ristoro su rete autostradale aspi, Decision of 12 March 2014, No. 24837, in Boll Uff, No. 13/2014; ICA, I774 – Tariffario minimo per gli amministratori professionisti di condominio-legge 4/2013, Decision of 12 March 2014, No. 24836, in Boll Uff, No. 14/2014; ICA, I776 – Mercato della produzione di poliuterano espanso flessibile, Decision of 3 April 2014, No. 24856 in Boll Uff, No. 16/2014; ICA, I773 – Consorzio bancomat-commissioni bill payments, Decision of 19 February 2014, No. 24806 in Boll Uff, No. 10/2014; ICA, I778 – Mercati dei sistemi gestionali di base degli istituti di istruzione e del registro elettronico, Decision of 9 April 2014, No. 24868, in Boll Uff, No. 17/2014; ICA, I779 – Mercato dei servizi turistici-prenotazioni alberghiere on line, Decision of 7 May 2014, No. 24907, in Boll Uff, No. 21/2014; ICA, I780 – Mercato del calcestruzzo in Veneto, Decision of 7 May 2014, No. 24908, in Boll Uff, No. 21/2014; ICA, I777 – Tassi sui mutui nella provincia di Bolzano, Decision of 7 May 2014, No. 24897 in Boll Uff, No. 21/2014. ↑
- ICA, AS988 Proposte di riforma concorrenziale ai fini della legge annuale per il mercato e la concorrenza anno 2013, Decision of 2 October 2012, in Boll Uff, No. 38/2012. ↑
- ICA, I745 – Consigli degli ordini degli avvocati/diniego all’esercizio di avvocato, Decision of 23 April 2013, No. 24327, in Boll Uff, No. 19/2013. ↑
- However, this approach may radically change if the proposal of a directive of the European Parliament and of the Council regarding certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (COM(2013)0404 – C7-0170/2013 – 2013/0185(COD)) will be finally approved. Indeed, according to article 9, paragraph 1, of the above proposal, ‘Member States shall ensure that an infringement of competition law found by a final decision of a national competition authority or a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 of the Treaty or under national competition law. This provision is without prejudice to the rights and obligations under Article 267 of the Treaty’. ↑
- ICA, I701 – Vendita al dettaglio di prodotti cosmetici, Decision of 15 December 2010, No. 21924, in Boll Uff, No. 49/2010. ↑
- ICA, I733 Servizi di agenzia marittima, Decision of 22 February 2012, No. 23338, in Boll Uff, 9/2012. ↑
- Administrative Court of Latium, Sec. I, No. 363/2013. ↑
- Supreme Administrative Court, Sec. VI, No. 1948/2014. ↑
- Supreme Administrative Court, Sec. VI, No. 4181/2001; Supreme Administrative Court, Sec. I, No. 7451/2001; Supreme Administrative Court, Sec. VI, No. 4362/2002. ↑
- 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. ↑
- Supreme Administrative Court, Sec. VI, No. 3058/2012. ↑
- Administrative Court of Latium, Sec. I, No. 5822/2013 ↑
- See ICA, I747 – Consiglio Notarile di Lucca/Controlli sull’applicazione della tariffa, Decision of 13 March 2013, No. 24275, in Boll Uff, No. 12/2013; ICA, I739 – Mondadori Electa-Réunion Des Musées Nationaux/Jvco, Decision of 13 March 2013, No. 24273, in Boll Uff, No. 12/2013; ICA, I745 – Consigli degli ordini degli avvocati/Diniego all’esercizio di avvocato, Decision of 23 April 2013, No. 24327, in Boll Uff, No. 19/2013; ICA, I749 – Consiglio Notarile di Milano-Delibera No. 4/2012, Decision of 30 May 2013, No. 24377, in Boll Uff, No. 23/2013; ICA, I750 – Consiglio Notarile di Bari-Conformità alla delibera No. 4/2012, Decision of 30 May 2013, No. 24378, in Boll Uff, No. 23/2013; ICA, I753 – Consiglio Notarile di Verona-Delibera del 9 febbraio 2012, Decision of 30 May 2013, No. 24379, in Boll Uff, No. 23/2013; ICA, I743 – Tariffe traghetti da/per la Sardegna, Decision of 11 June 2013, No. 24405, in Boll Uff, No. 25/2013; ICA, I758 – Accordo strategico Impregilo/Salini, Decision of 3 July 2013, No. 24442, in Boll Uff, No. 28/2013; ICA, I719 – Ordine Degli Avvocati di Brescia, Decision of 17 October 2013, No. 24553, in Boll Uff, No. 43/2013. ↑
- I760 – Roche-Novartis/Farmaci Avastin e Lucentis, Decision of 27 February 2014, No. 24823 in Boll Uff, No. 11/2014. ↑
- Administrative Court of Latium, Sec. I, No. 6044/2012; Administrative Court of Latium, Sec. I No. 3268/2012; Supreme Administrative Court, Sec. VI, No. 3013/2011; Supreme Administrative Court Sec. VI, No. 6469/2007. ↑
- ICA, I731 – Gare assicurative asl e aziende ospedaliere campane, Decision of 28 September 2011, No 22838, in Boll Uff, No. 39/2011. ↑
- Administrative Court of Latium, Sec. I, No. 6044/2012. ↑
- The same Decree has introduced also the leniency and the interim measures in the Italian legal framework. ↑
- 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; Administrative Court of Latium, Sec. I, No. 2902/2008. ↑
- It amended the previous Resolution of 12 October 2006, No. 16015, as integrated by the Resolution of 11 February 2011, No. 22089. ↑
- 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; Administrative Court of Latium, Sec. I, No. 14157/2007; Supreme Administrative Court, Sec. VI, No. 1190/2009; Administrative Court of Latium, Sec. I, No. 12319/2009. 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 e Regole, 2007, p. 229. ↑
- 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; A Pera – G Codacci Pisanelli, Decisioni con impegni e private enforcement nel diritto antitrust, in Mercato Concorrenza Regole, 2012, I, p. 773 and f. ↑
- F Ghezzi – G Olivieri, Diritto antitrust, Torino, 2013, p. 330. ↑
- See A Pera – G Codacci Pisanelli, Decisioni con impegni e private enforcement nel diritto antitrust, in Mercato Concorrenza Regole, 2012, I, p. 74 and f. See www.osservatorioantitrust.eu/it. ↑
- ICA, I702 – Agenti monomandatari, Decision of 20 May 2014, No. 24935, in Boll Uff, No. 23/2014. ↑
- ICA, I718 – Enervit-Contratti di distribuzione, Decision of 12 March 2014, No. 24827, in Boll Uff, No. 11/2014. ↑
- ICA, I766 – Inverter solari ed eolici – Imposizione prezzi minimi, Decision of 27 March 2014, No. 24844, in Boll Uff, No. 13/2014. ↑
- ICA, I768 – Centrale d’acquisto per la grande distribuzione organizzata, Decision of 28 May 2014, No. 24943, in Boll Uff, No. 24/2014. ↑
- In the Italian legal framework there is no mechanism for publishing actions for damages. ↑
- ICA, I641 – Rifornimenti aeroportuali, Decision of 14 June 2006, No. 15604, in Boll Uff, No. 23/2006. In 2011, Ryanair sued ExxonMobil in UK for damages from the same cartel. ↑
- Which brought the Law Decree No. 1/2012. ↑
- Pursuant to article 33 of the same Law. ↑
- See the Technical Report added to the Law Decree No. 1/2012. ↑
- The above said Court will have regard only to the actions launched after the entry into force of Law No. 27/2012 which brought the above mentioned Law Decree into effect. ↑
- Which brought the Law Decree No. 145/2013 (the ‘Decreto Destinazione Italia’). ↑
- Milan Tribunal, 20 December 2010, upheld by Milan Court of Appeals, 3 May 2011; Turin Court of Appeals, 23 September 2011; Naples Tribunal, 9 December 2011; Rome Tribunal, 27 April 2012. Recently, the two decisions of the Rome Tribunal, dated 2 May 2013 (see
- Naples Tribunal 28 January 2013, No. 2195; Turin Tribunal 10 April 2014, No. 2659; Milan Tribunal 14 March 2012, No. 3078. ↑
- See www.osservatorioantitrust.eu/it/azioni-di-classe-incardinate-nei-tribunali-italiani. ↑
- ICA, I743 – Tariffe traghetti da/per la Sardegna, Decision of 11 June 2013, No. 24405, in Boll Uff, No. 25/2013. ↑
- See Administrative Court of Latium, Sec. I, No. 1344/2012. ↑
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